Himachal Pradesh High Court
Hans Raj & Others vs Ghurko on 2 August, 2017
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 429 of 2004.
Reserved on 26.7.2017.
.
Decided on: 2.8.2017.
Hans Raj & others ....Appellants/Defendants.
Versus
Ghurko ... Respondent/defendant.
....................................................................................
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes.
For the appellant. : Mr. Bhupender Gupta, Sr. Advocate with
Mr. Ajit Jaswal, Advocate.
For the respondent : Mr. K.D. Sood, Sr. Advocate with
Mr. Rajnish K. Lall, Advocate.
Ajay Mohan Goel, J.
By way of this appeal challenge has been made to the judgment and decree passed by the Court of learned Addl. District Judge (1) Kangra at Dharamshala in Civil Appeal No. 108-N/2001 dated 2.7.2004, vide which learned appellate court while dismissing the appeal filed by present appellant upheld the judgment and decree passed by the Court of learned Sub Judge (II), Nurpur, Distt. Kangra 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 09/08/2017 23:56:18 :::HCHP 2in Civil Suit No. 273 of 1993 dated 29.8.2001, whereby learned trial court had dismissed the suit filed by present appellant seeking .
declaration to the effect that he along with other co-sharers was owner in exclusive possession of the suit land and was entitled to remain as such in future also and that gift deed dated 25.5.1992 in favour of defendant was illegal, null and void.
2. Brief facts necessary for adjudication of the present case are that plaintiff-Biru filed a suit for declaration that he was owner in exclusive possession of half share of suit land comprised in Khata No.1 min, Khatauni No.1, Khasra Nos. 5, 6, 7, 9, 90, 147, 148, 149, 150, 153, 154, 155, 156, 157, 158, 161, 162, 163, 164, 171/1, 172,182 measuring 2-76-00 HM, i.e. 1.38.00 HM situated in Tika Sugh Tarkhana Mauza Madoli, Tehsil Nurpur, District Kangra, H.P. (hereinafter referred at as 'suit land'). According to him, he had executed a conditional gift deed in favour of the defendant in lieu of his rendering past and future services but after execution of gift, defendant stopped rendering services to him and accordingly plaintiff did not deliver possession of the suit land to the defendant. As per the plaintiff few days after execution of the gift deed defendant started maltreating him and also tortured him. It was the case of the plaintiff that gift deed dated 25.5.1992 was never acted upon and the land ::: Downloaded on - 09/08/2017 23:56:18 :::HCHP 3 remained in exclusive possession of the plaintiff and other co-sharers.
As per him, defendant had threatened to dispossess him from the suit .
land in the garb of gift deed as well as Mutation No. 15 dated 29.5.1992 and in these circumstances he had filed the suit praying for following relief:-
"It, is therefore humbly prayed that in view of the foregoing reasons and facts stated above the suit of the plaintiff for declaration with consequential relief of permanent injunction and in alternative suit for possession and as fully detailed and described in the head note of the plaint may kindly be passed in favour of the plaintiff and against the defendants and any other relief to which the plaintiff is found entitled to may also be granted to him in the interest of justice and equity."
3. Suit was contested by defendant who took the stand that plaintiff was neither in possession of the suit land nor he was its owner as he had executed a gift deed qua the suit land in favour of defendant in lieu of services which were rendered by defendant to the plaintiff and the said gift deed was duly registered as per provisions of law and thereafter mutation was also decided on the basis of said registered gift deed on 25.9.1992 in favour of defendant. It was further mentioned in the written statement by way of preliminary objections that the suit of the plaintiff was barred under the provisions of Order 9 Rule 8 of the CPC as well as under Order 9 Rule 9 of the same as plaintiff had earlier also filed a suit on the same cause titled Biru Vs. Ghurco i.e. Civil Suit No. 211/1993 in the Court of learned Sub Judge ::: Downloaded on - 09/08/2017 23:56:18 :::HCHP 4 1st Class, Dharamshala which was later on transferred to the Court of learned Sub Judge 1st Class, Nurpur and the said suit stood dismissed .
in default as well as for want of prosecution on 15.2.1996. It was further mentioned in the written statement that plaintiff was real maternal uncle of defendant and as he was pleased with the services of defendant and also in lieu of love and affection plaintiff had executed gift deed of the suit land in favour of the defendant which was duly registered with Sub Registrar, Nurpur. As per defendant possession of the suit land was also given to him at the time of execution of gift deed and mutation was also decided on 29.5.1992 on the basis of said gift deed. It was also denied that defendant had stopped rendering service as alleged. It was further mentioned in the written statement that the gift deed was absolute and not conditional. As per defendant he had been rendering service to the plaintiff and was still ready and willing to keep the plaintiff with him and render him all services and suit stood filed at the behest of some person who wanted to grab the property of defendant.
4. On the basis of pleadings of the parties and material placed on record, learned trial court framed the following issues:-
"1. Whether the plaintiff alongwith other co-sharer is exclusively owner in possession of the suit land? OPP.::: Downloaded on - 09/08/2017 23:56:18 :::HCHP 5
2. Whether the gift deed dated 25.5.92 is executed by the plaintiff in favour of the defendant, is illegal, null and void and being conditional gift deed as alleged? OPD
3. Whether the plaintiff is stopped by his act and conduct to file .
the present suit? OPD
4. Whether the suit is not maintainable? OPD
5. Whether the plaintiff has no locus standi to file the present suit? OPD
6. Relief."
5. On the basis of evidence both ocular and documentary learned trial court returned the following findings on the said issues:-
"Issue No.1 :No.
Issue No.2 :No.
Issue No.3 :No.
Issue No.4 :Yes.
Issue No.5 :No.
Relief :Suit dismissed as per operative part of judgment."
6. Learned trial court vide its judgment and decree dated 29.8.2001 thus dismissed the suit so filed by the plaintiff. While dismissing the suit it was held by learned trial court that it was not in dispute that plaintiff had executed a gift deed in favour of defendant on 25.5.1992. Learned trial court held that recital of gift deed Ext.
DW1/A demonstrated that same was executed in lieu of services rendered by defendant to the plaintiff. Learned trial court also held that it was an admitted position that there was a long drawn legal battle between the general power of attorney of the plaintiff and the ::: Downloaded on - 09/08/2017 23:56:18 :::HCHP 6 plaintiff which was contested by defendant upto the High Court on behalf of plaintiff. Learned trial court also held that gift deed though .
subject to the condition that the donee should maintain the donor could not be revoked under Section 126 of the Transfer of Property Act on account of failure of the donee to maintain the donor for the reason that there was no agreement between the parties that gift could be suspended or revoked. Learned trial court held that failure of donee to maintain the donor was not a contingency which could defeat the gift and if donee does not maintain the donor as agreed by the donee, the latter can take steps to recover maintenance. On these bases it was held by learned trial court that gift deed, Ext. DW1/A, was not null and void. Learned trial court also held that as delivery of possession stood made in favour of the defendant by the plaintiff, after the gift deed was executed, there was no question of the plaintiff being exclusive owner in possession of the suit land as alleged.
Learned trial court also held that though the subsequent suit filed by plaintiff was not hit by the bar under Order 9 Rule 9 of the CPC but the same was definitely not maintainable as per the provisions of under Order 2 Rule 2 CPC as it was well known maxim that no one shall be twice vexed for one and the same cause of action. On these ::: Downloaded on - 09/08/2017 23:56:18 :::HCHP 7 bases learned trial court went on to dismiss the suit so filed by the plaintiff.
.
7. In appeal while concurring with the findings so returned by learned trial court dismissed the appeal so filed before it by the present appellant.
8. While dismissing the appeal it was held by learned appellate court that gift deed Ext. DW1/A did not appear to be a conditional gift which fell within the purview of Section 126 of the Transfer of Property Act. Learned appellate court also held that gift deed was not liable to be suspended or revoked or to be declared as illegal/void merely on the basis of the claim of the donor that donee had ceased to render services and maintain the appellant. Learned appellate court held that since the gift deed was not conditional one, it could not be invoked and donor at the most could ask for maintenance from the respondent. Learned appellate court further held that while deciding this aspect of the matter, learned trial court had not committed any irregularity or illegality. While disposing of application so filed under Order 41 Rule 27 of the CPC it was held by learned appellate court that additional evidence which appellant intended to bring on record even if permitted to be adduced would not affect the findings and on these bases learned appellate court ::: Downloaded on - 09/08/2017 23:56:18 :::HCHP 8 dismissed the application so filed under Order 41 Rule 27 CPC. On these bases learned appellate court dismissed the appeal so filed by .
the appellant-Biru.
9. Feeling aggrieved, appellant/plaintiff has filed this appeal which was admitted by this Court on 24.3.2005 on the following substantial questions of law: -
"a) Whether the Lower Appellate Court has committed procedural error in rejecting the application for additional evidence filed by the Plaintiff-Appellant under Order 41 Rule 27 of the Code of Civil Procedure?
b) Whether the Judgment and Decree passed by the Lower Appellate Court is rendered illegal and erroneous in not considering and deciding the question of maintainability of the suit which was dismissed by the Trial Court being hit by the provisions of Order 2 Rule 2 of the Code of Civil Procedure?
c) Whether the Trial Court wrongly rejected the prayer of the Plaintiff-Appellant made under Order 18 Rule 17 of the Code of Civil Procedure seeking permission to appear as his own witness, which fact is ignored by the Lower Appellate Court while rejecting the application under Order 41 Rule 27 of the Code of Civil Procedure?
d) Whether the Trial Court has committed grave procedural illegality in rejecting the application filed b the Plaintiff-
Appellant under Order 1 Rule 210 read with Order 6 Rule 17 of the Code of Civil Procedure for impleadment of subsequent purchaser from the defendant, was not such amendment for impleadment of the persons necessary to avoid multiplici8ty of litigation ?
10. I have heard learned counsel for the parties and have also gone through the records of the case as well as judgments and decrees passed by both learned courts below.
::: Downloaded on - 09/08/2017 23:56:18 :::HCHP 911. Plaintiff-Biru died during the pendency of the appeal and learned Senior Counsel appearing for the appellant has fairly .
submitted that issues No.(a) and (c) have now lost their significance.
Accordingly, I will deal with remaining two substantial questions of law.
Substantial Question of law (b).
12. Order 2 Rule 2 of CPC provides that every suit is to include the whole of the claim and when a plaintiff omits to sue in respect of or intentionally relinquishes any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished. Sub Rule 3 of Order 2 Rule 2 CPC further provides that a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs but if he omits, except with the leave of the Court, to sue for all such reliefs he shall not afterwards sue for any relief so omitted.
13. Plaint of the earlier suit filed by the plaintiff is on record as Ext DW1/A (Incidentally gift deed subject matter of the present civil suit is also Ext. DW1/A and the original gift deed as at page 151 of the record of the learned trial court whereas photocopy of the earlier plaint Ext. DW1/A is at page 165 of the paper book).
::: Downloaded on - 09/08/2017 23:56:18 :::HCHP 1014. A perusal of the said plaint which was registered as Civil Suit No. 211 of 1993 demonstrates that same was filed for possession .
of land as well as house to the extent of the share of the plaintiff i.e. Biru. It was mentioned in this plaint that plaintiff had executed a gift deed in favour of the defendant therein i.e. Ghurco on 25.5.1992 of the land as well as the house to the extent of his share on the assurance given by defendant that he would render all services till the lifetime of the plaintiff, but subsequent to execution of gift deed on 25.5.1992 mutation on the basis of which property in issue was sanctioned on 29.5.1992 defendant had stopped rendering service to the plaintiff and had also tortured him on several occasions as well as maltreated him. It was mentioned in the plaint that the gift deed was a conditional one and since after the execution of this gift defendant had stopped rendering service since October 1992, the gift deed was liable to be revoked. On these bases the following prayer was made in the plaint:-
"It is, therefore, prayed that a decree for possession of land as well as house to the extent of the house of plaintiff out of the total land comprised in khata No. 1 min, khatouni No. 1, khasra Nos. 5,6,7,9,80,147,148,150,149,153,154,155,156,157,158,161,162,163 ,164,171/1, 172,182 kita 22, measuring 2-76-00 hects meter according to jamabandi 1990-91 situated in Tika: Sugtarkhana Mauza; Mandoli, Tehsil Nurpur Distt. Kangra may please be passed in favour of the plaintiff and against the defendant. The plaintiff may please be given any other relief if found entitled too."::: Downloaded on - 09/08/2017 23:56:18 :::HCHP 11
15. Now a perusal of the averments made in the plaint out of which this appeal arises and the earlier suit demonstrates that the .
genesis of the cause of action of both the plaints was the same i.e. that the gift which was so executed by the plaintiff in favour of defendant was a conditional gift deed and as defendant had not fulfilled the condition of maintaining the plaintiff after the execution of the same, cause accrued in favour of the plaintiff to file the respective suits.
Admittedly no decree for cancellation/revocation or declaration to the effect that the gift deed in issue was null and void was prayed for in the earlier suit, though this relief was available to the plaintiff at that stage. In fact the factum of earlier suit having been filed by plaintiff has been concealed by him in the subsequent suit, therefore, in my considered view learned trial court correctly came to the conclusion that filing of the subsequent suit was hit by the provisions of Order 2 Rule 2 of the CPC.
16. However, de hors this, both the learned courts below even otherwise, after appreciation of evidence on record, have concurrently held against the plaintiff that the gift in issue was not a conditional gift, as was alleged by the plaintiff. To satisfy itself as to whether findings so returned by both the learned courts below were borne out from the records of the case or not this court has minutely ::: Downloaded on - 09/08/2017 23:56:18 :::HCHP 12 perused the contents of gift deed, original of which on record is Ext.
DW1/A. A perusal of the same demonstrates that there is no .
condition imposed in it to the effect that in case the donee after the execution of the gift deed failed to look after or maintain the donor, then the donor shall have the right to suspend/revoke or recall the gift deed. Therefore findings returned to this effect by both learned courts below cannot be said to be perverse as the same are duly borne out from the records of the case. Accordingly, I also hold that the gift deed so executed by the plaintiff in favour of the defendant did not fall within the purview of Section 126 of the Transfer of Property Act, as the conditions prescribed in Section 126 of the Act were not contemplated or contained in gift deed Ext. DW1/A. This substantial question of law is answered accordingly.
Substantial question of law (d).
17. Subsequent purchaser from the defendant was not a necessary party in the facts and circumstances of the present case and no fault can thus be found with the order so passed by learned court below which rejected the application so filed by the plaintiff in this regard. Claim of the plaintiff was that gift deed executed by him in favour of defendant and he was found to perform the conditions mentioned in the gift deed but as the donee has not adhered with the ::: Downloaded on - 09/08/2017 23:56:18 :::HCHP 13 obligations so the donor is at liberty to revoke the gift deed under Section 126 of the Transfer of Property Act. The proper and necessary .
party was the donee i.e. defendant Ghurco. He was impleaded as party defendant and in these circumstances there was no occasion for subsequent purchaser of the property from the defendant to have been impleaded as party defendant. Even otherwise in view of the fact that both learned courts below have concurrently held that the gift deed which was so executed by the plaintiff in favour of defendant was not a conditional one and could not have been revoked, and said findings returned by both learned courts below stand approved by this Court by way of this judgment, this substantial question of law in my considered view even otherwise loses its significance and the same is decided accordingly.
In view of the findings returned above, while upholding the judgments and decrees passed by both the learned courts below, as there is no merit in this appeal, the same is accordingly dismissed.
Pending miscellaneous applications if any also stand disposed of.
(Ajay Mohan Goel) Judge 2nd August, 2017.
(Guleria) ::: Downloaded on - 09/08/2017 23:56:18 :::HCHP