Himachal Pradesh High Court
Mohi Ram vs Ram Saran on 24 May, 2017
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 527 of 2004 along with RSA No. 528 of 2004.
.
Reserved on : 12th May, 2017.
Decided on : 24th May, 2017.
1. RSA No. 527 of 2004.
Mohi Ram .....Appellant/defendant.
r Versus
Ram Saran .....Respondent/plaintiff.
2. RSA No. 528 of 2004.
Mohi Ram .....Appellant/plaintiff.
Versus
Ram Saran .....Respondent/defendant.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Appellant(s): Mr. Ramakant Sharma, Senior Advocate with Mr. Dinesh, Advocate.
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 30/05/2017 00:00:46 :::HCHP...2...
For the Respondent(s): Mr. Suneet Goel, Advocate.
.
Sureshwar Thakur, Judge.
Since, both these appeals arise out of a common verdict pronounced by the learned Additional District Judge, Solan, H.P., in Civil Appeal No. 1-S/13 of 2004 and in Civil Appeal No. 2-S/13 of 2004, hence, both are liable to disposed off by common verdict.
2. Mohi Ram instituted Civil Suit No.21/1 of 1999/94 claiming a decree for declaration and consequential relief of injunction with respect to the suit land. The aforesaid suit of Mohi Ram stood dismissed by the learned trial Court. However, Civil Suit No. 460/1 of 99/97 instituted by Ram Saran, claiming therein a decree for possession of the suit land by way of redemption, stood decreed by the learned trial Court.
3. Mohi Ram, plaintiff in Civil Suit No. 21/1 of 1999/94 as also defendant in Civil Suit No. 461/1 of 1999/97, on standing aggrieved by his suit being ::: Downloaded on - 30/05/2017 00:00:46 :::HCHP ...3...
.
dismissed, whereas, the suit of Ram Saran being decreed under a common verdict by the learned Civil Judge (Junior Dvision), Kasauli at Solan, hence, proceeded to assail both the verdicts by assail both the verdicts by instituting appeal before the learned Additional District Judge, Solan. The apposite Civil Appeals therefrom bearing No. Civil Appeal No.1-S/13 of 2004 and r arising Civil Appeal No.2-S/13 of 2004 were decided under a common verdict pronounced by the learned Additional District Judge, Solan, whereby, he dismissed both the appeals.
4. Mohi Ram, being aggrieved by common verdict pronounced by the learned Additional District Judge, Solan in Civil Appeal No. 1-S/13 of 2004 and Civil Appeal No. 2-S/13 of 2004, has concerned to assail it by preferring the instant appeal therefrom before this Court.
BRIEF FACTS IN RSA No.528 of 2004.
::: Downloaded on - 30/05/2017 00:00:46 :::HCHP...4...
.
5. Mohi Ram (plaintiff in Civil Suit No. 21/1 of 1999/94), instituted the said suit against Ram Saran, that he has become owner-in-possession of the the land comprised in khata khatauni No. 15/23, khasra Nos. 4, 36 and 102, measuring 19 bighas, 12 biswas and 18 biswansi, situated in majua Jatrog, Tehsil Kasauli,District Solan by way of adverse possession. The possession of the plaintiff over this land is averred to be hostile, open in assertion of his right as owner since January, 1979 to the knowledge of the defendant and the general public. It averred that Ram Saran, defendant under the garb of wrong revenue record is causing interference in the peaceful possession of the plaintiff qua the suit land and the defendant is threatening the plaintiff to dispossess him from the suit land forcibly.
6. The defendant contested the suit and filed written statement, wherein, he has taken preliminary objections inter alias; locus standi, estoppel and cause of ::: Downloaded on - 30/05/2017 00:00:46 :::HCHP ...5...
.
action. On merits, the defendant has taken the stand that the plaintiff is coming in possession of the suit land as mortgagee since, 31.3.1979 when the defendant has mortgaged the suit land with the plaintiff Mohi Ram for Rs.8000/- and as such the possession of the plaintiff is that of mortgagee and he has not become the owner of the suit land by way of adverse possession.
7. The plaintiff/appellant herein filed replication to the written statement of the defendant/respondent, wherein, he denied the contents of the written statement and re-affirmed and re-asserted the averments, made in the plaint.
8. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:-
1. Whether the plaintiff has become owner by way of adverse possession? OPP ::: Downloaded on - 30/05/2017 00:00:46 :::HCHP ...6...
2. Whether the defendant is causing .
interference in the possession of the plaintiff?OPP
3. Whether the plaintiff has no locus standi and cause of action?OPD
4. Whether the plaintiff is estopped from filing the suit?OPD.
4A. Whether the possession of the plaintiff over the suit land is that of mortgagee, as alleged?OPD
5. Relief.
BRIEF FACTS IN RSA NO.527 OF 2004.
9. Ram Saran, plaintiff in Civil Suit No. 460/1 of 99/97, averred therein that he is the absolute owner of the land comprised in khata khatauni No.27/27 min, khasra No.4, 45 and 144, kitas 3, measuring 19 bighas, 12 biswas and 18 biswansies situated in Village Jatrog, Pargana Changi, Teh. Kasauli,District Solan, H.P. It has averred that the plaintiff had mortgaged the suit land with possession with Sh. Mohi Ram, defendant for a sum of Rs.8000/- vide agreement of 31.3.1979. Prior to the ::: Downloaded on - 30/05/2017 00:00:46 :::HCHP ...7...
.
creation of mortgage, the land was in the physical possession of the plaintiff and since the date of mortgage, the defendant has been coming into the possession of the suit land as mortgagee. The plaintiff is ready to pay the mortgage amount i.e. Rs.8000/- to the defendant and he offered him several mortgage money but the defendant refused to receive r times the the mortgage money and return the possession of the mortgaged land. Hence the suit.
10. The defendant contested the suit and filed written statement, wherein, Mohi Ram, defendant has pleaded that he has become owner of the suit land by way of adverse possession. The possession of the defendant over the suit land is hostile, continuous, without interference of any body including the plaintiff since January, 1979 to the knowledge of the plaintiff and general public. The alleged mortgage deed is ::: Downloaded on - 30/05/2017 00:00:46 :::HCHP ...8...
.
inadmissible in evidence as the same is incomplete, for want of registration.
11. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:-
1.
Whether the plaintiff had mortgaged the suit land to the defendant for the sum of Rs.8000/-
vide agreement dated 31.3.1979, as alleged? OPP.
2. Whether the plaintiff is entitled for the relief of possession by way of redemption, as prayed? OPP
3. Whether the alleged mortgage deed is inadmissible for the evidence, as alleged?OPD.
4. Whether no cause of action accrued to the plaintiff, as alleged? OPD
5. Whether the plaintiff is estopped from filing he present suit, as alleged?OPD
6. Relief.
::: Downloaded on - 30/05/2017 00:00:46 :::HCHP...9...
.
12. On an appraisal of evidence, adduced before the learned trial Court, the latter under its common verdict proceeded to dismiss Civil Suit No. 21/1 of 1999/94 instituted by Mohi Ram, whereas, it proceeded to decree the suit instituted by Ram Saran. In appeals, preferred therefrom by aggrieved Mohi Ram, before the learned First Appellate Court, the latter Court dismissed both the appeals, whereas, it affirmed the findings recorded by the learned trial Court.
13. Now Mohi Ram/appellant herein, has instituted the instant Regular Second Appeals before this Court, wherein he assails the findings recorded in its impugned common judgment and decree by the learned first Appellate Court. When the appeals came up for admission, on 02.12.2004, this Court, admitted both the appeals instituted by Mohi Ram appellant against the common judgment(s) and decree(s), rendered by the ::: Downloaded on - 30/05/2017 00:00:46 :::HCHP ...10...
.
learned first Appellate Court, on the hereinafter extracted common substantial questions of law:-
1. Whether the Courts below have dealt with the case by mis-appreciation and mis-
interpretation of provisions of Section 17 of the Indian Registration Act, Section 59 of Transfer of Property Act and Article 65 of the Limitation Act?
2. Whether the Courts below have mis- interpreted the document Ext. D-2 and mis- appreciated the documents Exts.D-4 to D-8 and the statements of PW-1 to PW-3 and DW-1 to DW-3?
3. Whether the lower appellate Court by not disposing of the application of the appellant averring that the respondent was not heard of for the last 7 or 8 years has committed such illegalities which vitiates the impugned judgment and decree?
Substantial question of Law No.3:
14. A studied and careful perusal of the records unveils that the learned First Appellate Court, has not made any adjudication upon an application preferred before it, under the provisions of Section 151 of the Code of Civil Procedure by the appellant, wherein, he had espoused that since Ram Saran was not heard of, for the last 7-9 years, hence, the presumption embodied in ::: Downloaded on - 30/05/2017 00:00:46 :::HCHP ...11...
.
Section 108 of The Indian Evidence Act qua his no longer being alive hence warranting its apt erection. The provisions of Section 108 of the Indian Evidence Act read as under:
"108. Burden of proving that person is alive who has not been heard of for seven years.- [provided that when ] the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is (shifted to ) the person who affirms it."
15. Now with Ram Saran instituting Civil Suit No. 460/1 of 99/97 through his special power of attorney before the learned trial Court, suit whereof stood decreed, as also, with his special power of attorney stepping into the witnesses box for testifying in support of the averments made in the plaint, hence, constrained ::: Downloaded on - 30/05/2017 00:00:46 :::HCHP ...12...
.
the learned trial Court to decree it. However, the learned First Appellate Court, especially when it stood seized with an appeal preferred before it, by the aggrieved concerned also with the latter preferring the aforestated application before it, was hence enjoined to, after striking issues on the pleadings of the respective parties in the aforesaid application also its consequently r permitting the parties to adduce their respective evidence thereon, hence, pronounce its decision thereon. Moreover, when the evidence adduced by appellant Mohi Ram may have unveiled that Ram Saran was not surviving at the time of the learned First Appellate Court being seized with Civil Appeal Nos. 1-S/13 of 2004 and Civil Appeal No. 2-S/13 of 2004, whereupon, it may have been constrained, to while recording an affirmative rendition thereon also insist upon the litigants concerned to move an appropriate application therebefore, for seeking his substitution by his legal heirs. However, since the learned first Appellate ::: Downloaded on - 30/05/2017 00:00:46 :::HCHP ...13...
.
Court omitted to make any pronouncement upon the aforesaid application, it has precluded, emanation of truth with respect to the fact of Ram Saran, surviving at the stage of its being seized with the appeals aforesaid also with respect to his surviving at the stage of its pronouncing a decision upon the aforesaid appeals.
Further sequel whereof , is that it fosters an inference that a pervasive stain of vitiation percolating into the impugned rendition, vitiation whereof arises from the fact of, hence, its standing pronounced with Ram Saran may be not surviving at the stage when the learned First Appellate Court pronounced, its verdict upon the civil appeals aforesaid. In sequel thereto, it appears that the common verdict pronounced by the learned first Appellate Court in Civil Appeal No. 1-S/13 of 2004 and in Civil Appeal No. 2-S/13 of 2004 stands stained with a vice of its may be standing pronounced against a dead person. For erasing the aforesaid inference, hence, an ::: Downloaded on - 30/05/2017 00:00:46 :::HCHP ...14...
.
apposite pronouncement thereon was imperative.
Contrarily, non rendition of a verdict thereon enhances the aforesaid stain. In sequel, substantial question of law No.3 is answered in favour of the appellant and against the respondent.
16. Consequently, the instant appeals hence stand disposed off as allowed, with a direction of their remand to the learned First Appellate Court for enabling it to decide application being CMA No. 228-6 of 2004 instituted therebefore, by Mohi Ram under Section 151 of the CPC, "prior whereto" it shall strike issues upon the pleadings constituted by the respective contestants and shall also permit them to adduce their respective evidence on the relevant issues. Reiteratedly, it shall thereafter make a pronouncement upon the aforesaid application bearing CMA No. 228-S/6 of 2004. In case on the strength of evidence existing before it, it concludes that the aforesaid application warrants its standing ::: Downloaded on - 30/05/2017 00:00:46 :::HCHP ...15...
.
allowed, it shall thereafter proceed to, in accordance with law, permit the litigant concerned, to thereupon make an apposite application before it, for seeking substitution of the deceased concerned by his legal heirs and shall decide it in accordance with law, whereafter, it shall proceed to record in accordance with law, a fresh decision upon Civil Appeal No. 1-S/13 of 2004 and Civil Appeal No. 2-S/13 of 2004. In case, the learned First Appellate Court comes to the conclusion qua CMA No. 228-S/6 of 2004 warranting dismissal, it shall record its detailed reasons for drawing such a conclusion.
Thereafter, it shall return the file to this Court, on receipt whereof, the instant appeals shall be restored to their respective original numbers and thereafter they shall be heard on merits. Substantial questions of law No.1 and 2 hence become redundant and do not warrant any meteing of any answer thereon. The parties are directed to appear before the learned First Appellate Court on ::: Downloaded on - 30/05/2017 00:00:46 :::HCHP ...16...
.
29.06.2017. The learned First Appellate Court is directed to dispose of the "matter(s)" within six months from today. All pending applications also stand disposed of.
Records be sent back forthwith.
(Sureshwar Thakur) 24 May, 2017.
th Judge.
(jai) ::: Downloaded on - 30/05/2017 00:00:46 :::HCHP