Himachal Pradesh High Court
Shankar Lal (Through Lrs) vs Ramesh Chander (Through Lrs) And Others on 22 November, 2016
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No.556 of 2004
Reserved on : 7.11.2016
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Date of decision: 22/11/2016
Shankar Lal (through LRs)
..Appellant/defendant
of
Versus
Ramesh Chander (through LRs) and others
..Respondents.
Coram
rt
The Hon'ble Mr.Justice Sureshwar Thakur, J.
Whether approved for reporting?1. Yes For the appellant: Mr. J.R.Poswal, Advocate.
For the respondents: Mr. G.D.Verma, Sr. Advocate with Mr. B.C.Verma, Advocate, for respondents No. 1(a) & 1(b) and 2 to 5.
Sureshwar Thakur, J:
Under concurrently recorded impugned renditions of both the learned Courts below the suit of the plaintiffs for declaration besides for relief of permanent prohibitory injunction qua the suit property besides qua the defendants stood decreed. The defendants stand aggrieved by the concurrently recorded renditions of both the learned Courts below wherefrom they for seeking their reversal institute the instant appeal herebefore.1
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2. The facts necessary for rendering a decision in the instant appeal are that Ram Rakha died on 4th December, 1983 leaving .
behind the plaintiffs as his heirs. The plaintiffs and Ram Rakha were living at Lalgam in Jammu and Kashmir. The defendant No.2 took undue advantage of the absence of plaintiffs and their predecessor in of interest colluded with revenue officials and Ram Swaroop and Karam Chand etc. moved application for mutation of suit land in their favour rt after the death of Ram Rakha and defendant No.2 succeeded in getting entered and attested the mutation in respect of suit land in her favour vide mutation No.125 on 24.12.1994 behind the back of the plaintiffs. The defendant No.2 sold some part of the land to defendant No.1 vide sale deed No.1259 dated 3.11.1999.
Consequently, the mutation was sanctioned in favour of defendant No.1 on the basis of illegal and wrong sale deed. The matter went to Hon'ble High Court in an appeal. During the pendency of the appeal before the Hon'ble High Court of Himachal Pradesh the plaintiffs moved an application under Order 1 Rule 10 CPC and they became party. The Hon'ble High Court dismissed the suit and set-aside the judgement and decess passed in favour of defendant No.2. After setting aside the decree the defendants again colluded with the ::: Downloaded on - 15/04/2017 21:36:10 :::HCHP ...3...
revenue officials again executed sale deed. The mudations are stated to be illegal and void as a result of fraud. It is also pleaded .
that the defendants were known to the whereabouts of the plaintiffs and Ram Rakha was in visiting terms and was in regular touch with defendants. The plaintiffs prayed for a decree that they are absolute of owners in possession of the suit land and also alternatively prayed for relief of possession.
3. rt The defendants contested the suit and rasied preliminary objections about maintainability, locus standi, cause of action and estoppel. On merits it is admitted that Ram Rakha was owner of the suit property and after his death defendant No.2 the next legal heir became the owner in possession of the property. It is pleaded that Ram Rakha slipped away from the house when he was minor about 40 years and was not heard by persons who could hear and knowledge about him. It is pleaded that the suit land is in possession of defendant No.2. The defendant No.1 has taken plea of bonafide purchaser after due inquiry of the title from the record and spot position. The plaintiffs are stated to be neither legal heirs nor having any concern with the property of deceased Ram Rakha.
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4. On the pleadings of the parties, the trial Court struck following issues inter-se the parties in contest:-
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1. Whether the plaintiffs are the legal heirs of deceased Ram Rakha? OPP.
2. Whether the sale deed No. 1259 dated 3.11.1999 and 529 dated 5.5.2001 are illegal, null and void having no of effect on the rights of the plaintiffs?
3. Whether the suit is not maintainable? OPD
4. Whether the plaintiffs are estopped to file the present rt suit due to their act, conduct and acquiescence? OPD.
5. Whether the plaintiffs are having no locus standi? OPD.
6. Whether the suit of the plaintiffs is barred by limitation? OPD 6-A Whether the defendants have become the owner by way of adverse possession? OPD.
6-B Whether the defendant No.1 is bonafide purchaser for consideration?
7. Relief.
5 On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiffs besides the learned First Appellate Court dismissed the appeal preferred therefrom before it by the defendants.
6. Now the defendant No.1 has instituted the instant Regular Second Appeal before this Court, assailing the findings ::: Downloaded on - 15/04/2017 21:36:10 :::HCHP ...5...
recorded in its impugned judgment and decree by the learned first Appellate Court. When the appeal came up for admission on .
14.12.2004, this Court admitted the appeal on the hereinafter extracted substantial question of law:-
"1. Whether the learned First Appellate Court erred in not deciding the applications, filed by the appellant-defendant for of leaving additional evidence under Order 41 Rule 27 of the Code of Civil Procedure, which resulted in grave injustice?
2. Whether the learned trial Court had no pecuniary jurisdiction rt to try the suit?
3. Whether the learned trial Court and the first Appellate Court erred in holding that the suit was within the period of limitation?
4. Whether the findings of the learned trial Court and the first Appellate Court are dehors the evidence on record?
Substantial questions of law.
7. On demise one Ram Rakha, the defendant No.2 who uncontrovertedly is his Class-II heir obtained qua the suit property, comprising the estate of deceased Ram Rakha, mutation No. 125 besides mutation No. 163 wherewithin a pronouncements occur declaring her to be owner of the suit property. The plaintiffs concerted to set-aside the aforesaid mutations recorded qua the suit property. Their claim qua the suit property stood anvilled upon theirs respectively being the widow besides the progeny born from the ::: Downloaded on - 15/04/2017 21:36:10 :::HCHP ...6...
wedlock of deceased Ram Rakha with one Bhagwanti. Consequently they canvass qua with theirs holding the capacity of theirs being the .
Class-I heirs of deceased Ram Rakha qua hence theirs on demise of Ram Rakha holding a capacity superior to the capacity of the defendant No.1 to succeed to his estate.
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8. For validating the pronouncements concurrently recorded by both the learned Courts below the evidence adduced therebefore rt is enjoined to hold visible portrayals qua (a) deceased Ram Rakha solemnizing marriage with one Bhagwanti. (b) the plaintiffs other than one Bhagwanti standing begotten from the wedlock which occurred inter se deceased Ram Rakha with Bhagwanti. (c) The identity of Ram Rakha displayed in jamabandi Ext.P-4 standing connected with the predecessor in interest of the plaintiffs. (d) Since defendant No.1 during the pendency of the suit before the Sub Judge 1st Class, Nalagarh acquired title qua the suit land under sale deeds respectively executed in his favour by defendant No.2, his espousal qua his falling within the ambit of an ostensible owner for thereupon the aforesaid sale deeds acquiring validation stands enjoined to be determined by this Court by its making allusion to the relevant evidence. In so far as the factum of the identity of ::: Downloaded on - 15/04/2017 21:36:10 :::HCHP ...7...
deceased Ram Rakha as displayed in jamabandi Ext.P-4 vis.a.vis. his holding connectivity with his holding the capacity of being the pre .
deceased husband besides the pre deceased father respectively of the plaintiffs, is concerned, it is emphatically established on record qua his belonging to the Bhramin caste besides his residing at village of Lodhimajra, Tehsil Nalagarh. PW-2 testifies qua hers residing at Lodhimajra whereat she developed intimacy with Ram Rakha who rt was thereat running a shop wherefrom they departed to Amritsar whereat they solemnized marriage besides her testification qua thereafter theirs residing at Siyalkot, Jammu, Ambala, Delhi, Amritsar, Sri Nagal and theirs ultimately settling at Uri in Jammu and Kashmir, holds tenacity in establishing the factum aforesaid significantly when it acquires corroborative vigour from the testifications of other plaintiffs' witnesses.
9. The vigour of evidence qua the aforesaid facet comprised in the testifications of the plaintiffs' witnesses acquires incremental momentum from their relevant testifications occurring in their respective examinations in chief remaining unshred of their efficacy despite theirs standing subjected to an exacting cross-examination by the counsel for the defendants. Also the vigour of their respective ::: Downloaded on - 15/04/2017 21:36:10 :::HCHP ...8...
testifications qua the relevant fact aforestated attains redoubled sinew from the factum of the defendants not adducing therebefore .
the relevant best documentary evidence comprised in theirs adducing the photographs of Ram Rakha qua whom reflections occur in jamabandi Ext.P-4 vis.a.vis the photographs of the purported of predecessor in interest of the plaintiffs whereupon with a display respectively therein qua dissimilarity occurring inter se both they rt would succeed in theirs delinking the identity of Ram Rakha displayed in jamabandi Ex. P-4 with the identity of the purported predecessor in interest of the plaintiffs concomitantly thereupon they would achieve success in begetting reversal of the verdicts of both the Courts below. Apart from oral evidence displaying the factum of Ram Rakha solemnizing marriage with Bhagwanti, documentary evidence comprised in Ext.P-10 (Ext.P-10A translated copy) constituting the voters list of the legislative assembly and of the Parliament, for Jammu and Kashmir when holds reflections in tandem with oral evidence also with the voters list constituting a public record within the ambit of Section 35 and Section 74 of the Indian Evidence Act whereupon it enjoys a presumption of truth, the presumption of truth enjoyed by the relevant reflections occurring therewithin acquire ::: Downloaded on - 15/04/2017 21:36:10 :::HCHP ...9...
conclusivity for want of adduction therebefore by the defendants of cogent evidence for eroding the truth of the relevant manifestation .
carried therewithin Ext.b-11 comprises a copy of a diploma issued by the Jammu and Kashmir State Medical Faculty in favour of plaintiff No.5 wherein Ram Rakha stands depicted to be her father. Rakesh of Chander stands depicted in Ext.P-12 to be the son of deceased Ram Rakha. Ext.PX pronounces qua plaintiff No.1 being son of Pt. Ram Rakha Awasthi.
rt
10. Statement of accounts comprised in Ext.P-3, P-4, P-5 and P-6 maintained by deceased Ram Rakha with the relevant banking agencies do also vividly depict the identity of the predecessor in interest of the plaintiffs.
11. Grant of succession certificate vis.a.vis. the plaintiffs comprised in Ext.P8 vis.a.vis the estate of deceased Ram Rakha conclusively establishes the relevant factum of the plaintiffs holding the capacity of theirs being construable to be the class-I heirs of deceased Ram Rakha especially when the veracity of the relevant recitals occurring therewithin remain unrepulsed by cogent evidence in rebuttal thereto standing adduced therebefore by the defendants nor when Ext.P-8 stood concerted by the defendants to beget ::: Downloaded on - 15/04/2017 21:36:10 :::HCHP ...10...
annulment by theirs initiating before the competent Court proceedings for quashing it.
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12. Even though all the aforesaid oral besides documentary evidence conclusively sustain an inference qua the plaintiffs respectively standing related to deceased Ram Rakha as his wife of besides his offsprings from his wedlock with plaintiff Bhagwanti nonetheless the defendants had strived to contend qua the entering rt of a wedlock by Ram Rakha with Bhagwanti without prior thereto the latter annulling her previous marriage with one Karam Chand, not holding any validation. However, the aforesaid espousal of the defendants to erode the legality of the marriage entered inter se plaintiff Bhagwanti with deceased Ram Rakha is bereft of any cogent evidence for sustaining it also assuming even if plaintiff Bhagwanti without annulling her previous marriage with Karam Chand had contracted a marriage with Ram Rakha yet with the provisions of Section 16 of the Hindu Marriage Act holding a mandate qua the offsprings born from a void marriage holding the capacity to succeed to the estate of their deceased father renders them to hold the relevant capacity of theirs being construable to be Class-I heirs of deceased Ram Rakha also hence empowers them to on his demise ::: Downloaded on - 15/04/2017 21:36:10 :::HCHP ...11...
acquire his estate in supersession to the right if any of defendant No.2 uncontrovertedly his class-II heir to succeed to the estate of .
Ram Rakha. Moreover in making the aforesaid inference strength stands marshaled by the factum, for reasons aforestated qua the identity of Ram Rakha reflected in Jamabandi Ext.P-4 holding of connectivity with the identity of the predecessor in interest of the plaintiffs.
13. rt Be that as it may, the defendant No.2, had on anvil of Ext.P-2 comprising the verdict recorded by the Civil Court on 1.12.1994, verdict whereof of the Civil Court stood affirmed by the learned Appellate Court wherewithin the defendant No.2 stood declared to hold an entitlement to on demise of Ram Rakha who stood impleaded in the suit as defendant No.2 to inherit his estate, had concerted to espouse qua hence the effect of the oral testifications besides the effect of the aforesaid documentary evidence standing blunted also thereupon the concurrently recorded pronouncements rendered by both the Courts below loosing their vigour. The aforesaid espousal is bereft of authenticity in the face of Ext.P-19 holding a verdict recorded by this Court in a second appeal filed hereat by Karam Chand a party to the lis whereon the aforesaid ::: Downloaded on - 15/04/2017 21:36:10 :::HCHP ...12...
renditions stood concurrently recorded by the learned Courts below wherewithin unfoldments occur qua defendant No.1 on demise of .
Ram Rakha impleaded as a defendant in the suit, standing entitled to inherit his estate whereupon this Court annulled Ext.P-2 on account qua on occurrence of demise of Ram Rakha defendant No.2 of in the suit on 4.12.1983 yet his remaining unsubstituted by his LRs hence rendering the concurrently recorded renditions of both the rt Courts below to stand pronounced against a dead person whereupon they acquired a vice of nullity. Moreover, the factum of impleadment of aforesaid Ram Rakha in the Civil Suit aforesaid negates the effect of proceedings of Makful Ul Khabri initiated at the instance of Karam Chand before the Assistant Collector 2nd Grade, wherein he had claimed qua Ram Rakha deceased missing since the age of 17-18 years in sequel whereto a notice stood published in Vir Partap on 7th May, 1989, in aftermath whereof the contentious mutation qua the suit property stood attested in favour of Krishana defendant No. 2 herebefore. In addition, the factum of impleadment of Ram Rakha in the civil suit aforesaid begets an inference of one Karam Chand besides defendant No.2 Krishana hence acquiescing qua his being alive also his not missing rather also when they on occurrence of his ::: Downloaded on - 15/04/2017 21:36:10 :::HCHP ...13...
demise during the pendency of the suit whereupon they omitted to beget his impleadment by his LRs fillips a derivative qua theirs by .
machination excluding the participation of the plaintiffs' in the previous civil proceedings hence theirs obtaining a stained decree comprised in Ext.P-2. Further more, the effect qua theirs before the of learned trial Court omitting to beget substitution of deceased Ram Rakha by his legal representatives obviously when thereupon the rt names of his legal representatives would occur besides would stand unfolded, identity whereof when holding dissimilarity with the plaintiffs' herein would stir an inference of deceased Ram Rakha displayed in Ex. P-4 not holding any connectivity with the predecessor-in-interest of the plaintiffs contrarily when they omitted to make the apposite endeavour before the learned trial Court, sustains an inference qua theirs acquiescing qua none other than the plaintiffs holding the capacity of the legal representatives of Ram Rakha also theirs hence acquiescing qua the compatibility of identity vis-à-vis Ram Rakha reflected in Ex. P-4 with the predecessor-in-
interest of the plaintiffs.
14. Apparently Ram Rakha predecessor in interest of the plaintiffs stands depicted in Ext.P-14, copy of jamabandi for the year ::: Downloaded on - 15/04/2017 21:36:10 :::HCHP ...14...
1991-92 to be owner in possession of the suit land whereupon the plaintiffs on his demise especially when they are his class-I heirs .
stand hence entitled to succeed to his estate rendering hence mutations conferring title upon the suit land qua defendant No.2 uncontrovertedly his class-II heirs, to hold no vigour. Defendant of No.1 who had acquired title to the suit land from defendant No.2 under sale deeds executed in his favour respectively on 3.11.1999 rt and 5.5.2001 had concerted to validate his acquisitions qua the suit land under the sale deeds aforesaid, by proclaiming his being an ostensible owner of the suit land. However, his proclamation would hold tenacity only when he was able to adduce best evidence in portrayal qua his despite holding an in-depth incisive inquiry his standing disabled to unearth therefrom qua the title of defendant No.2 qua the suit land standing clouded also thereupon he would be construable to be a bonafide purchaser for value of the suit land.
However, with defendant No.2 executing the relevant sale deeds during the pendency of the civil suit before the Sub Judge 1st Class, Nalagarh besides his acquiescing qua his holding awareness qua the ongoing litigation qua the suit property, holds loud unveilings qua his despite holding knowledge qua the title of defendant No.2 qua the ::: Downloaded on - 15/04/2017 21:36:10 :::HCHP ...15...
suit land standing clouded his yet proceeding to execute the apposite sale deeds with defendant No.2 wherefrom it is to be concluded with .
aplomb qua his not been amenable to be construable to be an ostensible owner nor also he can don the capacity of a bonafide purchaser for value of the suit property. Contrarily when herebefore of despite the aforesaid relevant unfoldments upsurging on his relevant inquiry qua the status of the suit property besides the assailable title rt thereon of defendant No.2 his yet proceeding to execute them with defendant No.2 encumbers him with a disability to validate the relevant acquisition also he stands fastened with a liability to accept the concurrently recorded renditions qua the suit property by both the Courts below.
15. The learned counsel appearing for the defendants' has contended qua the suit of the plaintiffs being barred by limitation, it standing instituted beyond the prescribed period mandated in Article 58 of the Limitation Act. However, the aforesaid submission cannot stand accepted by this Court, as the aforesaid apposite article of the Limitation Act while prescribing the commencement of the relevant period of limitation proclaims qua the relevant commencement for computing therefrom the period of limitation encapsulated therein ::: Downloaded on - 15/04/2017 21:36:10 :::HCHP ...16...
occurring on an accrual of "right to sue", right to sue whereof holds a connotation qua its spurrings or occurrings arising on actual and .
threatened invasion(s) qua the settled right of the plaintiff(s) upon the suit property. In sequel when the connotation borne by the apposite statutory parlance 'right to sue' is qua its upsurging on the of defendant(s) committing overt act upon the suit property hence theirs explicitly pronouncing theirs casting cloud qua the title of the rt plaintiff(s) qua the suit land whereupon even if mutations qua the suit property stood attested on 24.12.1994 and 20.11.1999 whereas the suit of the plaintiff stood instituted in the year 2001 would not render it to be construable to stand instituted beyond limitation, as merely on attestation of relevant mutations which palpably are nonest besides stand recorded in deprivation of the vested rights of the plaintiffs qua the suit property no title hence standing invested upon the suit land qua defendant No.2 rather when the plaintiffs' title to the suit land stood explicitly annulled besides came under a cloud by the proactive overt act of defendant No. 2 executiing sale deeds respectively on 3.11.1999 and 5.5.2001, with defendant No. 1 constituted the latter period to enliven thereat the relevant cause of action or it begot the commencement of the relevant period of ::: Downloaded on - 15/04/2017 21:36:10 :::HCHP ...17...
limitation for the plaintiffs' instituting a suit. In sequel thereto with the plaintiffs therefrom instituting the suit within the statutorily .
mandated period of limitation prescribed in the relevant Article of the Limitation Act renders it to be construable to be within limitation.
16. The defendants had raised a plea qua theirs perfecting of their title qua the suit property by adverse possession. However, the aforesaid plea stands benumbed by (a) the principle requisite for rt sustaining their claim comprised in theirs asserting it against a true owner being amiss imperatively when acquisition of the suit property by defendant No.1 from defendant No.2 occurred under sale deeds executed inter se both whereupon obviously with defendant No.1 accepting defendant No.2 to be owner of the suit property, he stood debarred from espousing qua the plaintiffs holding title to the suit property nor also he holds any leverage to contend of his standing capacitated to the rear plea against the plaintiffs. (b) likewise with defendant NO.2 executing the sale deeds aforesaid she thereupon acquiescing qua hers holding title as owner to the suit property concomitantly she also hence stands debarred from proclaiming the plaintiffs to be owners nor also she holds any capacity to rear the aforesaid plea against the plaintiffs conspicuously when she contests ::: Downloaded on - 15/04/2017 21:36:10 :::HCHP ...18...
their title qua the suit land with defendant No.1. Moreover, with defendant No. 1 concerting to validate the relevant acquisitions qua .
the suit property under sale deeds executed qua him by defendant No.2 estopes him from contending qua the plaintiffs holding title qua the suit property nor also hence when the relevant ingredient for of sustaining his plea stands provenly unsatiated he stands incapacitated to rear it.
17. rt The learned counsel for the defendants has contended qua the omission of the Appellate Court to pronounce an adjudication on his application constituted therebefore under Order 41 Rule 27 CPC wherein he sought leave of the Appellate Court to through the documents embodied therein deestablish the identity of Ram Rakha besides whereby he concerted to establish qua Ram Rakha borne in jamabandi comprised in Ext.P-4 not being the predecessor in interest of the plaintiffs, has throttled his relevant concert. The effect of the learned Appellate Court court not recording its pronouncement on the aforesaid application would not beget an inference qua the sinew of the aforestated oral besides documentary evidence which existed therebefore holding therewithin vivid articulations in portrayal of Ram Rakha being the predecessor in interest of the plaintiffs, hence ::: Downloaded on - 15/04/2017 21:36:10 :::HCHP ...19...
standing eroded also by his canvassing therein qua with Ram Rakha being a permanent resident of Nalagarh he stood statutorily barred to .
purchase property in Jammu and Kashmir whereas with his acquiring property in Jammu and Kashmir renders the identity of the predecessor in interest of the plaintiffs to stand unrelated with one of Ram Rakha who made acquisitions in Jammu and Kashmir also hence with one Ram Rakha whose name occurs in Ext.P-4, he would not rt succeed in benumbing the effect of the aforesaid evidence especially when the relevant acquisitions made by Ram Rakha in Jammu and Kashmir in purported infraction of the law prevailing thereat barring permanent residents other than of Jammu and Kashmir to acquire property therein, would only hold a ground for the acquisitions made thereat by Ram Rakha in purported infraction of the prevailing law thereat standing concerted by the appropriate agency(s) to be set-
aside. Consequently it does not give any ground to this Court in pronouncing qua with the learned first Appellate Court omitting to pronounce a verdict upon the application of the defendants' constituted therebefore under Order 41 Rule 27 CPC belittling the tenacity besides the effect of the aforesaid oral as well as documentary evidence tellingly pronouncing upon the similarity of ::: Downloaded on - 15/04/2017 21:36:10 :::HCHP ...20...
identity of Ram Rakha inter se apposite reflections occurring in the apposite jamabandi vis.a.vis his holding the capacity of the .
predecessor in interest of the plaintiffs'.
18. The suit of the plaintiffs for declaration apparently is properly valued for the purpose of Court fees also is apparently of properly valued qua the apposite relief claimed in the Civil Suit, therefore, it is held that the learned trial Court had the pecuniary rt jurisdiction to try the suit.
19. For reasons aforesaid this Court concludes with aplomb of the judgements and decrees of the Courts below standing sequelled by theirs appraising the entire evidence on record in a wholesome and harmonious manner apart therefrom it is obvious that the analysis of material on record by the learned Courts below not suffering from any perversity or absurdity of mis-appreciation and non appreciation of evidence on record, rather they have aptly appreciated the material available on record. I find no merit in this appeal, which is accordingly dismissed and the judgments and decrees of the both the Courts below are maintained and affirmed.
Substantial questions of law stands answered against the defendants.::: Downloaded on - 15/04/2017 21:36:10 :::HCHP
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Decree sheet be prepared accordingly. All pending applications stand disposed of accordingly. No costs.
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22nd November, 2016. (Sureshwar Thakur)
™ Judge.
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