Himachal Pradesh High Court
Sehju Ram vs Shri Pyare Ram And Others on 8 December, 2017
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 589 of 2008.
.
Decided on: 31.08.2017
Sehju Ram ....Appellant.
Versus
Shri Pyare Ram and others ... Respondents.
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 No
For the appellant : Mr. Y.P.S. Dhaulta, Advocate.
For the respondents : Mr. G.R. Palsra, Advocate for
respondents No. 1,2, 4 to 6 and 8
to 10.
Ajay Mohan Goel, Judge (Oral)
By way of this appeal, the appellant/plaintiff has challenged the judgment and decree passed by the Court of learned Additional District Judge, Fast Track Court, Mandi, H.P., in Civil Appeal No. 93/2004, 120/05, dated 30.08.2008, vide which learned Appellate Court while dismissing the appeal so filed by the present appellant upheld the judgment and decree passed by the Court of learned Civil Judge (Jr. Divn.) Chachiot at Gohar, in Civil Suit No. 354 of 2001, dated 21.09.2004, whereby learned trial Court had dismissed the ::: Downloaded on - 11/12/2017 23:06:43 :::HCHP suit filed by the present appellant/plaintiff for declaration and injunction against the respondents.
.
2. Brief facts necessary for the adjudication of this case are that the appellant/plaintiff (hereinafter referred to as the 'plaintiff') filed a suit praying for a decree for declaration and injunction against the defendants inter alia on the grounds that land comprised in Khewat No. 25, Khatauni No. 39, Khasra No. 371/347, measuring 1-5-17 bighas, situated in Mohal Barkawali No. H.B. 484, Teshil Thunag, District Mandi i.e. suit land, was previously owned and possessed by late Shri Sangni, who was succeeded by Manglu and after the death of Manglu, the suit land devolved upon Dharu, the predecessor in interest of plaintiff, defendants No. 1 and 2 and proforma defendant No. 3 and was joint Hindu Family ancestral property in the hands of Dharu and Dharu was merely a custodian of the same and had no right to alienate the same. Dharu died on 22.09.2001 and after his death, parties inherited the suit property qua their respective shares.
On 25.10.2001, defendants No. 1 and 2 had forcibly dispossessed the plaintiff and proforma defendants from joint possession on the basis of a purported Will executed in their favour by Dharu. As per plaintiff, defendants No. 1 and 2 had ::: Downloaded on - 11/12/2017 23:06:43 :::HCHP managed the Will and mutation on the basis thereof. It was further the case of the plaintiff that deceased Dharu had not .
executed any Will in favour of defendants No. 1 and 2 nor he had intended to execute the same and the Will in issue was a forged and fictitious document and mutation Nos. 778, 479 and 79, dated 23.10.2001, entered on the basis of the said Will were wrong, illegal, null and void and not binding upon the rights of the plaintiff and proforma defendants. It was on these bases that the suit was filed praying for reliefs mentioned therein.
3. By way of written statement filed by the contesting defendants, it was denied that the suit land was previously owned and possessed by late Sh. Sangni, from whom it was succeeded by Manglu and thereafter it devolved upon Dharu or was joint Hindu Family ancestral property in the hands of Dharu. As per defendants No. 1 and 2, suit land was self acquired property of Dharu and parties did not constitute joint Hindu Family nor the suit land was joint Hindu Family ancestral land. According to the defendants, deceased Dharu was fully empowered and competent to deal with the suit land. As per the defendants, Dharu had executed the Will in their favour and mutations regarding the inheritance of the ::: Downloaded on - 11/12/2017 23:06:43 :::HCHP same were rightly and validly attested on the basis of the said Will in favour of defendants No. 1 and 2. It was denied that .
alleged Will was shrouded with suspicious circumstances as alleged. It was also mentioned in the written statement that deceased Dharu was residing with defendants No. 1 and 2 and was being looked after and maintained by them and after his death, they have performed the last rites of Dharu.
4. By way of replication, the plaintiff while denying the averments made in the written statement reiterated the stand as was taken by them in the plaint.
5. On the basis of pleadings of the parties, learned trial Court framed the following issues:-
"i).Whether the deceased Dharu has not executed a Will No. 71 dated 29-3-1996 as alleged? OPP.
ii).Whether the Will NO. 71 dated 29.3.96 is wrong, illegal, forged, fictitious and void as alleged? OPP.
iii).Whether mutation No. 778, 479 and 79 dated 23.10.2001, are wrong illegal and void and not binding upon the rights of the plaintiff as alleged?
OPP.
iii)A.Whether the suit land is joint Hindu ancestral property of the parties, if so its effect? OPP
iv) Whether the plaintiff is entitled for the relief of permanent prohibitory injunction as prayed for? OPP
v).Whether the plaintiffs are entitled for Joint possession of the suit land as alleged? OPP
vi).Whether the suit of the plaintiff is not maintainable as alleged? OPD ::: Downloaded on - 11/12/2017 23:06:43 :::HCHP
vii) Whether the plaintiff is estopped by his act, conduct and deeds to file the present suit? OPD.
viii).Whether the plaintiff has no locus-standi and cause .
of action to file the present suit?
ix). Relief."
6. On the basis of evidence adduced by the respective parties both oral as well as documentary, learned trial Court decided the issues so framed as under:-
"Issue No.1 : No..
Issue No. 2 : No.
Issue No. 3 : No.
Issue No. 3-A : No.
Issue No.4 : No
Issue No.5 : No
Issue No.6 : Yes
Issue No. 7 : No
Issue No. 8 : Yes.
Relief : The suit is dismissed as per toperative
part of judgment."
7. The suit so filed by the plaintiff was dismissed by the learned trial Court. Learned trial Court held that defendants No. 1 and 2 had proved on record due execution of Will Ext. DW2/A by leading convincing and satisfactory evidence. It further held that mutation Ext. P-4 to P-6 were duly attested on the basis of the said Will. Learned trial Court further held that it stood established from the records including the cross examination of PW2 that deceased Dharu, used to live with defendants No. 1 and 2 and he was not living with the plaintiff and proforma defendant No. 3.
Learned trial Court also held that deposition of PW2 Karam ::: Downloaded on - 11/12/2017 23:06:43 :::HCHP Dass in his cross examination itself demonstrated that family of the plaintiff and defendants No. 1 and 2 did not constitute .
a joint Hindu family. It further went on to hold that it was not evident from the records that suit land had devolved upon Dharu from three successive generations. Learned trial Court also held that there was nothing on record to show that testator Dharu, plaintiff, defendants No. 1 and 2, proforma defendant No. 3 and other defendants constituted a joint Hindu family or that suit land was the part of the said joint Hindu family property. On these bases, it was also held by the learned trial Court that suit land was not part of the joint Hindu family property as alleged and Will which stood executed by Dharu in favour of defendants No. 1 and 2 was a legal and valid Will.
8. Feeling aggrieved by the judgment and decree so passed by the learned trial Court, the plaintiff filed the appeal.
9. Learned Appellate Court while upholding the judgment and decree so passed by the learned trial Court dismissed the appeal of the plaintiff. While dismissing the appeal, it was held by the learned Appellate Court that it stood established from the record that deceased Dharu had ::: Downloaded on - 11/12/2017 23:06:43 :::HCHP executed a legal and genuine registered Will in favour of defendants No. 1 and 2 and Will Ext. DW2/A was not a .
forged, fictitious and manipulated document. Learned Appellate Court also held that it stood established from the record that defendants No. 1 and 2 were rendering services to their deceased father Dharu during his lifetime including his two widows. It further held that daughters of Dharu were fully settled in their matrimonial houses and plaintiff, proforma defendant No. 3 and his third wife Smt. Sanpu Devi were also separately residing from him for the last 42 years and these were the factors which had motivated Dharu to execute the Will in issue in favour of defendants No. 1 and 2. Learned Appellate Court further held that it had already come on record that plaintiff and proforma defendant No. 3 and their mother were separately residing and they were not cultivating the suit property and all brothers and sisters were living separately. Learned Appellate Court held that no documentary evidence was produced to prove on record ancestral nature of the suit property which debarred deceased Dharu Ram from executing Will Ext. DW2/A in favour of defendants No. 1 and 2. On the basis of the said ::: Downloaded on - 11/12/2017 23:06:43 :::HCHP findings, learned Appellate Court dismissed the appeal of the plaintiff.
.
10. Feeling aggrieved, the plaintiff/appellant filed the present appeal.
11. This appeal was admitted by this Court on 07.11.2008 on the following substantial questions of law.
"a). Whether the mutation attested behind the back of appellant confer any right on the contesting defendants as it was fabricated and manipulated?
b). Whether the ld. Courts below fell into patent error by not allowing the application under 7 Rule 14(3) read with section 151 CPC which was pertaining to documents which were necessary and were touching the root of the controversy and thus were material for fair and just conclusion of Civil Suit?
c) Whether the suit land which was joint Hindu family ancestral property which was owned and possessed by late Shri Sangni, succeeded by Manglu father of Dharu, accordingly Dharu was merely Karta and Manager for the management of suit property as such Will if at all could not have been made pertaining to suit property?"
12. I have heard the learned Counsel appearing for the parties and also gone through the records of the case as well as the judgments and decrees passed by both the learned Courts below.
::: Downloaded on - 11/12/2017 23:06:43 :::HCHP13. During the course of arguments, learned Counsel for the appellant made submissions only qua substantial .
questions of law No. (a) and (c) and no arguments were made qua substantial question of law No. (b), therefore, this Court is not answering the same. Hereinafter, I will be dealing with both the substantial questions of law separately.
Substantial question of law No. (a):
14. There is a concurrent finding of fact recorded by both the learned Courts below against the present appellant to the effect that Will Ext. DW2/A was a valid Will executed by its testator Dharu in favour of defendants No. 1 and 2.
This appeal has not been admitted on a substantial question of law qua the validity of said findings. Both the learned Courts below have also accordingly held that mutations Ext.
P4 to P6 which were entered qua inheritance in favour of defendants No.1 and 2 on the basis of Will Ext. DW2/A were valid mutations.
15. A perusal of the records of the learned trial Court demonstrates that issue framed qua the said mutations by the learned trial Court was as under:-
::: Downloaded on - 11/12/2017 23:06:43 :::HCHP"Whether mutation No. 778, 479 and 79,dated 23.10.2001 are wrong illegal and void and not binding upon the rights of the plaintiff as alleged?OPP."
.
This issue stood decided by learned trial Court against the plaintiff and in favour of defendants No. 1 and 2.
A reading of the plaint demonstrates that there is no averment made in the same that mutations in issue were bad in law as the same were attested at the back of the plaintiff and were fabricated. All that is alleged in the plaint is that the Will on the basis of which said mutations were entered into was a forged and fictitious document and mutations No. 778, 479 and 79, dated 23.10.2001 were illegal, wrong, null and void and not binding on the plaintiff and proforma defendants. In other words, it was not the case of the plaintiff that because said mutations were attested at his back and were fabricated, therefore, the same were bad. Plaintiff's case was that mutations were based on false and fictitious Will and therefore, the mutations are bad. In view of the fact that both the learned Courts below held Will Ext. DW2/A to a validly executed Will, on the basis of which mutations were entered into and the issue of validity of Will in issue had attained finality, there is no force in the contention of the ::: Downloaded on - 11/12/2017 23:06:43 :::HCHP appellant/plaintiff that the mutations in issue were allegedly attested at his back and were fabricated and, therefore, the .
same are not sustainable in law. This substantial question of law is answered accordingly.
Substantial question of law No. (c):-
16. Learned trial Court has framed the specific issue No. (iii)-A as to whether property in issue was Joint Hindu Family ancestral property of the parties or not. On the basis of evidence on record, both ocular as well as documentary, it was held by learned trial court that the property was not ancestral as alleged and Dharu was not the manager of the same in his capacity as 'Karta' of joint Hindu family. Learned trial Court has returned specific finding to the effect that it was not been proved on record by plaintiff that suit land devolved upon Dharu from three successive generations.
Learned trial Court also returned specific finding that plaintiff, proforma defendant No. 3 and defendants No. 1 and 2 were residing separately and they did not constitute a joint Hindu Family. Learned trial Court has also returned findings to the effect that suit land was never jointly cultivated by plaintiff and proforma defendant No. 3 alongwith defendants No. 1 and 2 as it stood proved on record that plaintiff was ::: Downloaded on - 11/12/2017 23:06:43 :::HCHP residing separately from defendants No. 1 and 2. Learned trial Court also held that it stood established from the record .
including from the testimony of PW2 Karam Dass that deceased Dharu was not residing with plaintiff or proforma defendant No. 3 but was residing in the house of defendants No. 1 and 2. On these bases, it was held by the learned trial Court that neither the ancestral nature of the suit land stood proved by the plaintiff nor it could be proved by the plaintiff that he, defendants No. 1 and 2 and proforma defendant No. 3 constituted a joint Hindu family. Findings so returned by learned trial Court have been affirmed by the learned Appellate Court. A perusal of the record demonstrates that the findings so returned by both the learned Court below are duly substantiated from the records of the case. Plaintiff has not been able to prove from the documentary evidence on record that the suit land had devolved upon his late father Shri Dharu from three successive generations. It is also duly borne out from the records of the case that plaintiff, defendants No. 1 and 2 and proforma defendant No. 3 were not residing together and they never constituted a joint Hindu family. It is evident from the records especially the testimony of PW2 Karam Dass that deceased Dharu was living with ::: Downloaded on - 11/12/2017 23:06:43 :::HCHP defendants No. 1 and 2. This in fact has also been the stand of the defendants No. 1 and 2 and plaintiff has not been able .
to prove to the contrary. In this view of the matter, in my considered view, here it is not a case where the property in issue was joint Hindu family property or the plaintiff, defendants No. 1 and 2 and proforma defendant No. 3 constituted a joint Hindu family. Dharu was also not a 'Karta' or 'manager'. Suit land in fact was being held by him (Dharu) as self acquired property and the same stood rightly bequeathed by him by way of a registered Will in favour of defendants No. 1 and 2 as he was competent to do so. This substantial question of law is answered accordingly.
17. In view of above discussion, as there is no merit in the present appeal, accordingly, this Court while upholding the judgments and decrees passed by both the learned Courts below dismisses this appeal. Pending application(s), if any, also stands disposed of. No orders as to costs.
(Ajay Mohan Goel) Judge August 31, 2017.
(narender) ::: Downloaded on - 11/12/2017 23:06:43 :::HCHP