Punjab-Haryana High Court
Usha Devi vs Municipal Council And Ors on 18 January, 2016
Author: K. Kannan
Bench: K. Kannan
RSA No. 230 of 2013 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(1) RSA No. 230 of 2013 (O&M)
Date of decision: January 18, 2016
Smt. Usha Devi
...Appellant
Versus
Municipal Council and others
...Respondents
(2) RSA No. 3859 of 2013 (O&M)
Municipal Council Rewari
...Appellant
Versus
Usha Devi and others
...Respondents
(3) RSA No. 4259 of 2014 (O&M)
Smt. Usha Devi
...Appellant
Versus
Govt. High School and another
...Respondents
CORAM:- HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the
judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
Present: Mr. CB Kaushik, Advocate,
for the appellant in RSA No. 230 of 2013 and
RSA No. 4259 of 2014.
Mr. Arun Yadav, Advocate, for
Mr. Mukesh Kumar Verma, Advocate, for
PREM SINGH
2016.01.19 17:03
I attest to the accuracy and
integrity of this document
RSA No. 230 of 2013 2
the appellant in RSA No. 3859 of 2013 and
for respondents in RSA No. 230 of 2013 and
RSA No. 4259 of 2014.
Mr. CB Kaushik, Advocate,
for respondent No.1 in RSA No. 3859 of 2013.
K. KANNAN, J. (Oral)
1. All the appeals are connected and they are disposed of by a common judgment.
2. RSA Nos. 230 and 3859 of 2013 arise out of the same judgment. RSA No. 4259 of 2014 is brought at the instance of the plaintiff who is also plaintiff in the other connected appeal in RSA No. 230 of 2013, but with reference to a different subject matter.
3. The plaintiff's contention in the suit, which is the subject matter of RSA No. 230 and 3859 of 2013 is that the property in Khasra No. 204 belonged absolutely to one Makhan Lal. He had an adopted son named by Munshi Ram and the plaintiff was the paternal grand daughter of Munshi Ram. It was her contention that Makhan Lal had gifted the property to Punjab Government with conditions to construct a veterinary hospital, Printing Press and organize cattle fairs and if the property was not put to such use it would revert to the settlor. The plaintiff would claim that the Government did not put to the use for which the property was gifted and, therefore, the property reverted to her as legal representative of Makhan Lal.
4. There were two rival contentions, one at the instance of the Municipal Council and another at the instance of the State. It was the contention of the defendants that the genealogy as has been pleaded by the plaintiff, is not correct. It was stated that in certain proceedings which were PREM SINGH 2016.01.19 17:03 I attest to the accuracy and integrity of this document RSA No. 230 of 2013 3 initiated in the year 1939 in the Court of Shri Ayub Khan, it was held that the plaintiff had not established her representative character of heir of Makhan Lal. There was, however, a different view expressed in land acquisition proceedings that she was the heir of Makhan Lal and there had been a Will executed by Makhan Lal in favour of Munshi Ram in the year 1925, which referred to the plaintiff's grand father Munshi Ram as the adopted son. The heirship between the parties themselves did not conclude the issue, for, the more fundamental issue was whether there had been any gift to the State in the manner canvassed by the plaintiff and that there had been violation of the terms of the gift. There was no document filed for proof of gift nor was there any proof regarding the alleged conditions said to have been attached to the gift. There was also no correlation between the property claimed in the suit and the property alleged to have been gifted several decades back. The details of the conditional gift such as the date of the gift or the person who was associated with it were also not clearly given. The Court, therefore, dismissed the plaintiff's suit, although it found acting on the decision in the land acquisition case that the plaintiff' had proved herself to be the legal representative of Makhan Lal.
5. Along side the above suit, there was yet another suit instituted by the very same plaintiff with reference to a property in Khasra No. 164 in a property to the extent of 14 kanals and 7 marlas where a government school had been constructed and being run since 1910-1911. This manner of user was alleged to have been brought about by a request by the British Government and the local authority for use of the said property for play ground of the government school. A conditional gift restricting the use only PREM SINGH 2016.01.19 17:03 I attest to the accuracy and integrity of this document RSA No. 230 of 2013 4 for the purpose for which the requests were being made was made in the year 1911. The State, however, breached the contention by constructing a tempo stand and a Food and Supply godown. Here again the claim was that since the property had been used for the purpose other than for which the gift was made, it was liable for reversal to the heirs of Makhan Lal. The fallibilities in the previous case for want of details of gift, the inability of the plaintiff to correlate the khasra number as given in the plaint of the property alleged to have been gifted and the details of the gift not having established, the court dismissed the said suit also.
6. Against the 1st case there had been two appeals one filed by the plaintiff and the another by the Municipal Council, on the finding rendered that the plaintiff had established her heirship to Makhan Lal. The plaintiff had preferred the appeal against the subsequent suit also. All the appeals were dismissed confirming the finding of the trial court. The second appeals are brought by the plaintiff in RSA No. 230 of 2013 and RSA No. 4259 of 2014, while the Municipal Council has preferred the appeal in RSA No. 3859 of 2013 on the finding of heirship.
7. The case did not merit a decree as sought for in the respective suits only because when the plaintiff was unable to prove that the property belonged to the grand father Makhan Lal or that there was any co-relation between the property alleged to have been gifted and the property in suit. A gift attached to condition the breach of which purported to constitute the cause of action were themselves oral and not capable of being proved in the court when the contest was entered by the defendants. I will not fault the trial court in finding that in the absence of any details of gift, there was no PREM SINGH 2016.01.19 17:03 I attest to the accuracy and integrity of this document RSA No. 230 of 2013 5 question to proof of violation of condition of gift. The heirship of Usha Devi--plaintiff to Makhan Lal itself became secondary when the foundation for the plaintiff's case of ownership of the property in Makhan Lal and violation of conditions of alleged gift could not be established. There had been indeed reference to Makhan Lal's name in some revenue entry of some property but the most crucial issue of correlation to the old khasra number and khasra number found in the suit was not available. I would take the appreciation of the issues to be purely factual and the matter involve no substantial question for intervention in the second appeal in RSA No. 230 of 2013 and 4259 of 2014 are dismissed.
8. The second appeal brought by the Municipal Council was only with regard to the finding of proof of relationship of Usha Devi to Makhan Lal. There had been two decisions of civil court, one finding that she was not and yet another in land acquisition proceedings that she was the legal representative of Makhan Lal. These findings will have no bearing, if the other finding requires no intervention, for, without proof that Makhan Lal had gifted the property to the State and that there had been violation of conditions of the gift. There is no scope for recovery of possession of the property. Section 110 of the Evidence Act enacts an essential rule of evidence that possession of an individual is nine points in law and recovery action cannot succeed unless the plaintiff proves a better title. The proof of such title could have been possible only on proof of a right of reversion of an alleged breach of conditions that was not possible. The Municipal Council itself cannot come by any harm since the suit instituted by the plaintiff, which has been the subject matter of the appeals, referred to above, PREM SINGH 2016.01.19 17:03 I attest to the accuracy and integrity of this document RSA No. 230 of 2013 6 have been dismissed.
9. RSA No. 3859 of 2013 also is dismissed as requiring no intervention.
January 18, 2016 (K.KANNAN)
prem JUDGE
PREM SINGH
2016.01.19 17:03
I attest to the accuracy and
integrity of this document