Himachal Pradesh High Court
Tek Chand vs Of on 8 December, 2016
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 557 of 2004.
Reserved on: 2nd December, 2016.
.
Date of Decision : 8th December, 2016.
Tek Chand ..Appellant-Defendant
Versus
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Govind Kumar .....Respondent-Plaintiff.
Coram:
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The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Appellant: Mr. Anand Sharma, Advocate.
For the Respondent: Mr. N.K. Thakur, Senior Advocate with Mr. Divya Raj Singh, Advocate.
Sureshwar Thakur, Judge The instant Regular Second Appeal stands directed by the defendant/appellant herein against the impugned rendition of the learned District Judge, Chamba, Himachal Pradesh, whereby he dismissed the appeal of the defendant/appellant herein and affirmed the judgment and decree rendered by the learned Civil Judge (Junior Division), 1 Whether reporters of the local papers may be allowed to see the judgment?
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Chmaba, District Chamba, H.P., whereby the latter Court .
decreed the suit of the plaintiff. The defendant/appellant herein stands aggrieved by the judgment and decree of the learned District Judge, Chamba. His standing aggrieved, he of has therefrom preferred the instant appeal before this Court for seeking from this Court an order reversing the findings recorded therein.
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2. Briefly stated the facts of the case are that the plaintiff has filed the suit for permanent prohibitory and mandatory injunction against the defendant from interfering and raising the construction over the land comprised in khasra No.2648/210, khata/khatauni No.172/226, measuring 0-9 biswa, situated in Mohal Rajnagar, Tehsil and District Chamba, H.P. The claim of the plaintiff is that he is owner in possession of the suit land. The defendant is stranger to the suit land, having no right, title or interest in it. The defendant has started collecting construction material with intent to raise the construction over the suit land. The defendant was requested to desist from his illegal designs, ::: Downloaded on - 15/04/2017 21:42:19 :::HCHP ...3...
but of no avail. It has also been pleaded that in case the .
defendants succeeds to raise the construction over the suit land during the pendency of the suit, in that eventuality, the construction so raised be ordered to be demolished.
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3. The defendant contested the suit and filed written statement, wherein, he has taken preliminary objections qua the plaintiff having not come to the Court with clean hands rt and has suppressed the material fact that the suit land was exchanged by the father of the plaintiff namely Raju with one late Smt. Gauri, who in lieu of it, parted with the land comprised in Khasra No.2114 in his favour in the year 1978, and thereafter Smt. Gauri Gave the suit land to the defendant, who got the electric meter installed in the year 1981. On merits it is pleaded that the plaintiff is not owner in possession of the suit land. The suit land was given in exchange by the father of the plaintiff to Smt. Gauri. Since, the said Gauri gave this land to the defendant, as such, he raised the construction of three shops and one house over the suit land in the presence of the father of the plaintiff.
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Mutation No.850 qua the exchange of the suit land with the .
land comprised in khasra No.2114 was entered but the same was rejected on 18.2.1986 due to non appearance of the parties. The possession of the defendant is adverse and of hostile to the knowledge of the plaintiff, as such, the replying defendant has become owner of the suit land by way of adverse possession.
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4. The plaintiff/respondent herein filed replication to the written statement of the defendant/appellant herein, wherein, he denied the contents of the written statement and re-affirmed and re-asserted the averments, made in the plaint.
5. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:-
1. Whether the plaintiff is owner in possession of the suit land, as alleged?OPP
2. Whether the defendant is raising illegal and unlawful construction over the suit land, as alleged?
OPP
3. If issues No.1 and 2 are proved in affirmative, whether the plaintiff is entitled for the relief of mandatory injunction?OPP ::: Downloaded on - 15/04/2017 21:42:19 :::HCHP ...5...
4. Whether the plaintiff has not come to the court with clean hands?OPD .
5. Whether there was any exchange of land between Smt. Gauri and Raju in respect of the suit land, as alleged? If so its effect? OPD.
6. Whether the plaintiff is debarred by his own act and conduct to file the present suit?OPD.
7. In the alternative, whether the defendant has become owner of the suit land by way of adverse of possession, as alleged?OPD.
8. Relief.
6. rt On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the respondent herein/plaintiff. In an appeal, preferred therefrom by the appellant/defendant before the learned first Appellate Court, the latter Court dismissed the appeal.
7. Now the defendant/appellant has instituted the instant Regular Second Appeal before this Court assailing the findings recorded in its impugned judgement and decree by the learned first Appellate Court. When the appeal came up for admission on 04.03.2005, this Court, admitted the appeal instituted herebefore by the defendant/appellant against the judgment and decree of the learned first Appellate Court, on the hereinafter extracted substantial questions of law:-
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1. Whether a person in possession of exchanged land through a written document (Exhibit DA) can challenge the title of the .
mutually exchanged property of the other party and seek injunction?
2. Whether the learned Courts below could have discarded the document Exhibit DA only on the ground that it was not registered without taking into consideration that the said document could be relied upon for collateral purpose for proving the factum of possession as per Section 49 of the Registration Act?
Substantial Questions of Law No.1 and 2:
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8. Jamabandis borne respectively on Ex. DB and on Ex.DD pertaining respectively to the years 1974-75 and 1979- rt 80 make unequivocal depictions therein qua the father of the plaintiff standing recorded thereat as co-owner of the suit land. Under Ex. DA, executed inter se the father of the plaintiff with one Smt. Gauri, an exchange of their respective lands occurred inter se both, whereupon, Gauri acquired the interest in the suit land from Raju also thereupon the latter acquired the apposite interest in the land owned by Gauri.
Also therein a recital is borne qua Gauri transferring her interests qua the suit land as stood acquired by her under the relevant exchange occurring with the father of the plaintiff vis-a-vis the defendant. In consonance therewith the defendant raised construction upon the suit land in the year ::: Downloaded on - 15/04/2017 21:42:19 :::HCHP ...7...
1978. Uncontrovertedly, the defendant/appellant herein .
holds possession of the suit land upon which he raised construction in the year 1978.
9. Both the learned Courts below had countervailed of the vigour of Ex. DA on anvil of (a) it effecting alienation besides conveyance of title thereunder qua the father of the plaintiff and Smt. Gauri besides also upon the rt defendant/appellant whereupon its registration under the apposite statute was compulsory, whereas, it remaining unregistered no valid conveyance of title qua the suit land stood bestowed upon the defendant/appellant herein; (b) non occurrence of any depiction therein with specificity qua the specific area delineated to stand transferred vis-a-vis the defendant/appellant and (c) Ex. DA remaining unproven.
10. The efficacy of the aforesaid concurrently recorded pronouncements made by both the learned Courts for enfeebling the vigour of Ex.DA stands extinguished in the face of construction upon the suit land in pursuance to Ex. DA, standing raised by the defendant/appellant in the year 1978 ::: Downloaded on - 15/04/2017 21:42:19 :::HCHP ...8...
whereat the father of the plaintiff stands displayed in the .
apposite jamabandi to hold its ownership. Also when thereon he did not protest the raising of construction upon the suit land by the defendant/appellant, he is to be construed to of acquiesced to the factum of land whereon construction stood raised by the defendant/appellant in the year 1978 constituting the land qua which an exchange occurred inter se rt the executants of Ex.DA, whereupon, the non marking therein with specificity the area with respect whereto it occurred is wholly insignificant. Furthermore, the factum of the father of the plaintiff also accepting the valid execution of Ex.DA stands spurred by PW-2 in his cross-examination testifying qua the father of the plaintiff also raising construction upon a part of the land owned by Gauri in Village Rupani also his cultivating the other part thereto, significantly, when the apposite quid pro quo for the exchange which occurred inter se the executants of Ex. DA comprised in the father of the plaintiff therein alienating the suit land to Gauri, who thereunder alienated the suit land to the defendant/appellant, ::: Downloaded on - 15/04/2017 21:42:19 :::HCHP ...9...
whereas, Gauri in lieu thereto alienating her property in .
village Rupani vis-a-vis the father of the plaintiff, stood hence fully consumated. In aftermath, with aplomb it can stand concluded qua the executants of Ex. DA acting upon the of recitals manifested therein dehors any non marking therein with specificity of khasra numbers along with their dimensions where with respect whereto an exchange rt occurred also when the executants of Ex.DA without any remonstrance or demur raised at the earliest by each against the other respectively raising construction on the lands respectively brought to exchange under Ex. DA, spurs an inference qua the land(s) whereon they hold possession by raising construction thereon standing accepted by each of the executants of Ex. DA, embodying the corpus of the relevant exchange. Therefore, the conclusion recorded by both the learned Courts below qua for lack of enunciations with specificity in Ex.DA qua the area besides the dimensions of land(s) brought to exchange thereunder it hence lacking in efficacy warrants, its standing foundered.
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11. The relevant document whereunder the relevant .
exchange occurred inter se the parties thereto stood tendered into evidence by the defendant /appellant whereat it stood exhibited as Ex. DA. At the stage contemporaneous to its of tendering besides exhibition thereat no protest emanated from the plaintiff qua the recitals occurring therein standing ingrained with a vice of fictitiousness besides with a stain of rt falsity nor at the time of its standing tendered into evidence by the defendant whereupon it stood exhibited no protest stood evinced thereat at the instance of the plaintiff qua the occurrence of signatures thereon holding no authenticity, whereupon obviously, with the defendant discharging the onus of proving Ex.DA, corollary whereof is qua it being wholly inapt for both the learned Courts below to merely on anvil of DW-2 testifying qua his not knowing the name of the person who scribed Ex.DA, conclude qua, hence, the factum of, for the reasons aforesaid qua the onus of proving it standing discharged by the defendant, standing repelled. Moreover, at no stage it stands unraveled of the plaintiff making any ::: Downloaded on - 15/04/2017 21:42:19 :::HCHP ...11...
concert to either challenge the occurrence of signatures .
thereon of the executants of Ex.DA nor obviously when no concert in pursuance thereto stood assayed by the plaintiff qua the occurrence of markings/signatures thereon of the of executants thereto standing transmitted to the expert(s) concerned for his holding a comparison with the markings/signatures of the executants occurring thereon with rt their admitted markings/signatures, for thereupon his rendering an opinion qua their authenticity, fillips an inference qua Ex. DA standing proven to stand validly executed by its respective executants.
12. The effect of the aforesaid discussion holding unfoldments qua the father of the plaintiff, who stands displayed in the jamabandi(s) contemporaneous to the period whereat Ex.DA stood executed to hold exclusive title qua the suit property also thereupon his concomitantly holding an exclusive right to enter into an exchange qua the land(s) enumerated in Ex. DA besides when the aforesaid discussion brings to the fore qua the relevant exchange standing acted ::: Downloaded on - 15/04/2017 21:42:19 :::HCHP ...12...
upon in the year 1978 by the respective executants of Ex. DA .
also since at the relevant stage especially when in quick succession to the execution of Ex. DA construction stood raised by the defendant/appellant on the suit land besides of also stood raised by the father of the plaintiff upon the land of Gauri, renders the effect, if any of Ex.DA though standing enjoined by the apposite statute to be compulsorily registered rt whereas its evidently not coming to be registered to not either pale the effect of the aforesaid inference nor the factum of its non registration would render belittled the effect of the aforesaid acquiescence whereupon the concomitant effect is of the plaintiff standing estopped merely for want of registration of Ex. DA to assail qua no valid title thereunder standing conveyed vis-a-vis its executants. In making the aforesaid conclusion this Court anchors it on the statutory doctrine of part performance standing positioned on a pedestal of equity thereupon the sequel emanating therefrom is qua equity supporting transactions alike the one hereat though clothed imperfectly in those legal forms to which ::: Downloaded on - 15/04/2017 21:42:19 :::HCHP ...13...
finality attaches conspicuously when the bargain has been for .
the reasons aforestated acted upon hereat, also this Court draws succor from a decision reported in Mohamed Musa and others versus Aghore Kumar Ganguli and others, AIR of 1914 Privy Council 27. The aforesaid decision of the Privy Council stands referred to in a subsequent decision reported in Dada Vaku Nikam v. Bahiru Hingu Nikam and others, rt AIR 1927 Bombay 627, wherewithin the principle of equity postulated in the decision of the Privy Council reported in AIR 1914 Privy Council, 27 besides standing alluded to therein stood also followed, significantly when it stood pronounced therein qua it standing founded upon the principle of natural justice also it aborting perpetration of fraud in land transactions. The decision reported in AIR 1927, Bombay, 627 wherewithin the aforesaid principle stood propounded emanated from the Bomaby High Court on its standing seized with an oral exchange,whereupon, with evidently the contestants thereat acting thereupon, prodded the Bombay High Court to proceed to apply thereon the principle of part ::: Downloaded on - 15/04/2017 21:42:19 :::HCHP ...14...
performance despite obviously no scribed exchange interse .
the contestants thereat stood executed nor obviously it stood registered, though contradistinctively hereat a statutory mandate is cast upon the executants of Ex. DA for it to hold of completeness of legal form also for it to complete the vestment of title vis-a-vs its respective executants, to compulsorily register it, whereas, it standing evidently not rt registered may yet not denude its sanctity qua its thereunder vesting title respectively upon its executants, conspicuously, when in a pronouncement recorded by the Bombay High Court in Dada Vaku Nikam's case supra reported in AIR 1927, Bombay, 627, the latter Court therein invoking qua also an oral agreement of exchange the doctrine of part performance, in sequel whereof, this Court likewise when evidently hereat Ex. DA for reasons aforestated stands acted upon by the parties thereto, stands constrained to conclude qua the benefit of the doctrine of part performance standing available to be derived by the defendant/appellant.
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13. Be that as it may, the Madras High Court in its .
decision reported in Putta Chelamiah and another versus Venkata Kumara Mahipati Suryarao Bahadur Garu and another, AIR 1930 Madras 1, had even attracted the of applicability of the statutory doctrine of part performance vis-
a-vis an oral exchange even when obviously the latter remained unscribed whereupon obviously the invincible rt conclusion is of the statutory doctrine of part performance when apposite evidence in consonance therewith stands adduced as for reasons aforestated stands adduced hereat, it warranting attraction vis-a-vis Ex, DA, rendering thereupon the want of registration of Ex. DA to be wholly inefficacious rather wholly insignificant.
14. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court as also by the learned trial Court stand not based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court as well as the learned trial Court have both excluded germane ::: Downloaded on - 15/04/2017 21:42:19 :::HCHP ...16...
and apposite material from consideration. Consequently, .
substantial questions of law are answered in favour of the appellant/defendant and against the respondent/plaintiff.
15. In view of above discussion, the present Regular of Second Appeal is allowed and the suit of the plaintiff is dismissed. In sequel, the judgements and decrees rendered by both the learned Courts below are set aside. All pending rt applications also stand disposed of. No order as to costs.
(Sureshwar Thakur) 8th December, 2016. Judge.
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