Smt. Hanso Devi vs Shri Desh Raj
2021 Latest Caselaw 4034 HP

                             1


                                     Reportable

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

        ON THE      20th    DAY OF AUGUST, 2021




                                                      .

                           BEFORE

      HON'BLE MR. JUSTICE SURESHWAR THAKUR





    REGULAR SECOND APPEALs NO. 182 and 183 of 2008

 1.          REGULAR SECOND APPEAL NO. 182 OF 2008





 Between:

        1. SMT. HANSO DEVI

            WIFE OF LATE SHRI PURAN CHAND;

        2. SMT. AMRO DEVI
            DAUGHTER OF LATE SHRI PURAN CHAND;
        3. PARSI DEVI



            DAUGHTER OF LATE SHRI PURAN CHAND;
            AND




        4. ROMALI





            DAUGHTER OF LATE SHRI PURAN CHAND
            ALL RESIDENT OF VILLAGE CHURAN, TEHSIL





            NAHAN, DISTRICT SIRMOUR, H.P.
                                     ...APPELLANTS




 (BY MR.K.D. SOOD, SENIOR ADVOCATE WITH MR.
 MUKUL SOOD, ADVOCATE, FOR THE APPELLANTS)




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    AND

    1. SHRI DESH RAJ,
    S/O OF LATE SHRI DAYA RAM,
    RESIDENT OF VILLAGE CHURAN,




                                                  .
    TEHSIL NAHAN, DISTRICT SIRMOUR, H.P.





     (SINCE DECEASED THROUGH HEIRS AND LEGAL
    REPRESENTATIVES)





    1(A) SHRI GURMEET SINGH
    SON OF SHRI SHAMSHER SINGH
    SON OF LATE SHRI DESH RAJ;
    RESIDENT OF CHUARAN, TEHSIL NAHAN, DISTRICT





    SIRMOUR, H.P.
                         ..PROFORMA RESPONDENTS


    (BY MR. BIMAL GUPTA, SENIOR ADVOCATE WITH MS.
    POONAM MOGHTA, ADVOCATE, FOR THE
    RESPONDENTS)



    2. REGULAR SECOND APPEAL NO. 183 OF 2008

Between:




          1. SMT. HANSO DEVI





            WIFE OF LATE SHRI PURAN CHAND;
          2. SMT. AMRO DEVI





            DAUGHTER OF LATE SHRI PURAN CHAND;
          3. PARSI DEVI
            DAUGHTER OF LATE SHRI PURAN CHAND;
            AND
          4. ROMALI
            DAUGHTER OF LATE SHRI PURAN CHAND




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           ALL RESIDENT OF VILLAGE CHURAN, TEHSIL
           NAHAN, DISTRICT SIRMOUR, H.P.
                                  ...APPELLANTS




                                                   .

(BY MR.K.D. SOOD, SENIOR ADVOCATE WITH MR.





MUKUL SOOD, ADVOCATE, FOR THE APPELLANTS)

    AND





    1. SHRI DESH RAJ,
    S/O OF LATE SHRI DAYA RAM,
    RESIDENT OF VILLAGE CHURAN,
    TEHSIL NAHAN, DISTRICT SIRMOUR, H.P.

     (SINCE DECEASED THROUGH HEIRS AND LEGAL

    REPRESENTATIVES)

    1(A) SHRI GURMEET SINGH
    SON OF SHRI SHAMSHER SINGH


    SON OF LATE SHRI DESH RAJ;

    1(B) SMT. CHAMELI DEVI DAUGHTER OF LATE SHRI




    DESH RAJ;





    RESIDENT OF CHUARAN, TEHSIL NAHAN, DISTRICT
    SIRMOUR, H.P.
                       ..PROFORMA RESPONDENTS





    Reserved on : 11.8.2021




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           These appeals coming on for orders this day, the

    Court passed the following:

                            JUDGMENT

.

The plaintiffs instituted a civil suit, bearing No.

40/1 of 2014,before the learned Civil Judge (Jr. Division),

Sirmour District at Nahan, H.P. In the afore civil suit, the

plaintiffs claimed the making of a declaratory decree, for

setting aside the deed of relinquishment, bearing No.

307, of, 2.8.1999, executed by Puran Chand, vis-à-vis,

suit khasra Nos, and, qua the defendants. The plaintiffs

afore suit became dismissed by the learned Civil Judge

(Jr. Divn), Sirmour, at Nahan, through a verdict made

thereon on 30.12.2006. The aggrieved plaintiffs

constituted, against the afore made verdict, of the

learned trial Court, a civil appeal, bearing No. 8-N/13 of

2007, before the learned first appellate Court. The

learned first appellate Court, through its verdict, made

upon Civil Appeal (supra), proceeded to dismiss the

plaintiffs' appeal and, obviously, affirmed the judgment

and decree, as made by the learned trial Court

concerned.

2. Against the afore concurrently recorded

verdicts, as made by both the learned Courts below,

the aggrieved plaintiffs instituted the instant appeal,

.

before this Court. When RSA bearing No. 182 of 2008,

came up for hearing, before this Court, on 31.3.2009,

it came to be admitted, on the hereinafter extracted

substantial questions of law:

1. Whether the findings of the court below are perverse, based on misreading of oral and

documentary evidence and the pleadings of

the parties and the finding that there was a valid relinquishment deed executed by Puran Chand which was not vitiated as a

result of fraud and misrepresentation is sustainable in law?

2. Whether in view of the findings in civil suit

No. 40/1 of 2004 and civil appeal No. 8- N/13 of 2007 in respect of the same

property the same relinquishment deed that the plea of Order 2 Rule 2 CPC, suit was barred by limitation and the decree in the suit in respect of the second relinquishment deed the decree for injunction was not sustainable when the plaintiff was not in possession of the property?

3. Whether in view of the fact that defendant was in possession of the property and the plaintiff not in exclusive possession thereof, the suit for injunction was maintainable

.

and decree is sustainable in law?

3. Moreover, civil suit No. 59/1 of 2004 was

instituted before the learned trial Court, by one Desh Raj,

claiming therein the relief, of a decree of permanent

prohibitory injunction, being pronounced against the

defendants, and, vis-à-vis, suit khasra Nos. The learned

trial Judge, through its verdict made on 30.12.2006,

upon the civil suit (supra) hence decreed the plaintiffs'

suit. The aggrieved defendants carried thereagainst civil

appeal bearing No. 9-N/13 of 2007, before the learned

first appellate Court. The learned first appellate Court,

through its verdict, made thereon, on 3.3.2008,

dismissed the defendants' appeal, and, obviously,

affirmed and maintained the verdict hence decreeing the

plaintiffs' suit, as made by the learned trial judge

concerned. The defendants are aggrieved from the afore

concurrently made verdicts, by both, the learned Courts

below, and, constituted before this Court, the instant

regular second appeal, bearing No. 183 of 2008, which

came to be admitted on the hereinafter substantial

questions of law:

.

1. Whether the findings of the Court below are perverse and based on misreading of oral

and documentary evidence, more particularly, the basis documents of the title relinquishment deed Ext. PW1/B and D-1

and the compromise deed, statements of the parties and Decreesheet D-7,D-8 and D-6.

2. Whether in view of the fiduciary relations

between Puran Chand and the defendant

and the lack of independent advise before executing the relinquishment deed raised

inference of undue influence, coercion and fraud and the judgment and decree in

appeal is not sustainable?

3. Whether the Court below was justified in

not drawing adverse inference against the defendant for his non-appearance as a

witness and the findings are based on wrong assumptions in ignoring the admissions, particularly D-1, D-5, D-6,D-7 and D-8 whereby the other relinquishment deed was not accepted and matter compromised?

SUBSTANTIAL QUESTIONS OF LAW

3. It is not disputed amongst the contesting

.

litigants, that the suit properties, are ancestral

coparcenery properties. Moreover, it is also not in dispute

amongst the contesting litigants, that the deceased

maker of the relinquishment deed, as executed by him,

alongwith other r to vis-à-vis, one of the defendants, held rights as co-owner,

co-sharers in the undivided suit

property. All the apposite co-owners are reflected in Ext.

PW1/A, exhibit whereof is the Jamabandi, appertaining

to the suit khasra Nos. Moreover, the maker of the

contentious relinquishment deed, one Puran Chand, and,

the defendant in whose favour, the disputed

relinquishment deed, was executed, are real brothers.

Therefore, unless it is proved on record, that the

relinquishment deed, comprised in Ext. D-1, did not,

come to be validly executed by deceased Puran Chand,

thereupon, the afore Puran Chand, could validly cause

conferment of title, through Ext. D-1, vis-à-vis, the

defendant concerned. Consequently, it has to be gauged

from the evidence on record, whether the valid execution

of Ext. D-1, has been unflinchingly proven. In the afore

.

endeavour, the son of defendant Desh Raj, one Shamsher

Singh, stepped into the witness box, and, narrated in his

affidavit, Ext. D-B, exhibit whereof came to be tendered

in evidence, during the course of his examination-in-

chief, that deceased Puran Chand used to live with his

daughter, who is married in Haryana. He also narrated

therein that the wife of deceased, did not, live with the

deceased, rather, she used to live in Haryana.

Furthermore, he has made echoing(s) therein, that on

2.8.1999, the deceased alongwith Kreshni, went to

Nahan. Alongwith the defendant, one Mam Raj, Ram

Sarup and Jetho Ram, Numberdar, also went to Nahan.

One Devender Singh, Advocate, is, deposed to be

approached by the defendant, to prepare a

relinquishment deed, qua the house of the afore deceased

Puran Chand. The afore Devender Singh Advocate, is,

further deposed to prepare the apposite relinquishment

deed, and, after contents thereof, being read over and

explained, in vernacular, to the afore Puran Chand, the

latter, in the presence of the witnesses thereto, namely

one Mam Raj, Ram Sarup and Jetho, appended his

.

thumb impressions, upon Ext. D-1. Also, in the presence

of the afore Puran Chand, the apposite witnesses thereto,

made their respective thumb marks on Ext.D-1.

Subsequently, Ext. D-1 was presented before Sub-

Registrar, Nahan, who after inquiring from Puran Chand,

vis-à-vis, the veracity of the contents of relinquishment

deed, and, upon the afore inquiry, Puran Chand

admitting that all the contents carried therein are

truthful, hence proceeded to, after his ensuring the

identification before him, of, Puran Chand, by Jethu,

Numberdar, make all the relevant signatured statutory

endorsements, on Ext. D-1. He also echoed in Ext. DB,

that at the relevant time, deceased Puran Chand, was in

a sound and disposing state of mind. Even though, he

was thoroughly cross-examined by the learned counsel

for the plaintiff. However, in the afore endeavor, no

elicitation, became un-earthed from him, vis-à-vis, any

fraud or coercion, becoming exerted, upon one Puran

Chand, in his executing Ext.D-1. The afore made

deposition is, corroborated by the scribe of Ext. D-1,

inasmuch as by DW-3, one Devender Singh, Advocate.

.

4. Moreover, DW-4, one Mam Raj, who is an

attesting witnesses of Ext. D-1, completely supported, the

version, as deposed earlier by both DW-3, and, DW-2.

Consequently, since even during the course of the cross-

examination of DW-4, nothing emerged from him, rather

suggestive, that the deceased executant of Ext. D-1, one

Puran Chand, at the relevant time, was not in a sound

and disposing state of mind, nor when any elicitation

emanated from him, rather suggestive that the thumb

impressions, of, the afore, were not made by him, in the

presence of DW-4, rather when he has also deposed, that

after the deceased testator appending his thumb

impressions, on Ext.D-1, his also appending his thumb

marks thereon(s) hence, in the presence of the deceased

executant. Therefore, this Court concludes, that the valid

execution of Ext.D-1 has been unflinchingly proven.

5. Be that as it may, Ext. D-1, became registered by

the Sub-Registrar concerned. On Ext. D-1 occur the

sealed and signatured statutory endorsements, of the

Sub-Registrar concerned, whereabove there occur(s)

recitals, that only after the Sub-Registrar concerned,

.

reading over and explaining in vernacular to Puran

Chand, all the contents of Ext.D-1,and, also ensuring

that all the contents carried therein being comprehended

by Puran Chand, hence, his ensuring the making in his

presence rather the apposite thumb impressions, on

Ext. D-1, by Puran Chand,. Therefore, the sealed and

signatured statutory endorsements as made by the Sub-

Registrar concerned, on Ext. D-1, do acquire completest

evidentiary vigor. Conspicously, when no evidence in

rebuttal to the making of the afore sealed, and,

signatured statutory endorsements, became hence

adduced by the plaintiffs, nor when the identification,

before the Sub-Registrar concerned, of, the deceased

testator, by Jethu Numberdar, has been challenged.

Consequently, the Court concludes, that the valid

execution of Ext.D-1 has been completely proven.

6. The learned counsel for appellants submits,

before this Court, that since in an earlier suit, interse

litigants similar in the instant suit, and also, when in the

earlier suit, rather similar to the extant suit property,

hence, khasra Nos, became borne, and, whereupon a

.

compromise, occurred before the Lok Adalat,

compromise whereof is borne in Ext. D-6. Therefore, the

learned counsel concerned argues that omission, on the

part of the plaintiffs, to, in the earlier suit, make a

challenge, upon the impugned relinquishment deed,

constitutes a bar of estoppels(s), as becomes carried in

order 2 Rule 2 CPC, against the plaintiffs, rather

constituting the extant suit. However, the learned first

appellate Court, in its verdict, made upon Civil Appeal

No. 8-N/13 of 2007, made a conclusion that the afore bar

is not attracted, as there exists no evidence on record,

rather suggestive that the plaintiffs in Civil Suit No. 40/1

of 2004, were ever, in contemporaneity to the institution

of the earlier suit or during pendency thereof, hence

aware qua existence of the apposite relinquishment deed.

Therefore, an inference became aroused that in

contemporaneity to the institution of the earlier suit, or

during its pendency, the plaintiffs were not aware of the

existence of the impugned relinquishment deed, and,

obviously could not at the afore phase cast any challenge

thereto. Consequently, the learned first appellate Court

.

aptly concluded, that the bar contained in Order 2 Rule 2

CPC, is not attracted, vis-à-vis, the plaintiffs' instant

suit, and, thereafter, proceeded to reverse the findings

contrary thereto, as became returned on the apposite

issue, by the learned trial Judge. The afore made

conclusion is well-founded, and, also does not warrant

any interference from this Court. Consequently,

substantial questions of law No. 1 and 2, carried in RSA

No. 182 of 2008, are answered in favour of the

defendant(s), and also substantial questions of law No. 1,

2 and 3 carried in RSA No. 183 of 2008, are, answered in

favour of the plaintiffs and, against the defendant.

Substantial questions of law with respect to the

validity of decree of injunction, granted to the plaintiff, one Desh Raj in Civil Suit No. 59/1 of 2004

7. The suit property, is recorded in the apposite

Jamabandi, to be co-owned by all the recorded co-

owners. All the co-owners hold unity of title, and

community of possession over every inch of the

undivided suit property.

8. Assumingly, if the plaintiff, one Desh Raj is not

.

in physical possession of the suit land, none of the

recorded alongwith him hence co-owners or co-sharers in

the undivided suit property, even if are holding physical

possession thereof, cannot deny to Desh Raj the relief of

injunction, nor can proceed to exclusively utilize rather

to his complete ouster, any portion of the undivided suit

property, nor can proceed to cause construction, upon

any prime portion, of the undivided suit property, rather

without the consent of other co-owners concerned.

9. Consequently, there is no merit in both the

appeals, and, the same are dismissed. The impugned

judgments and decrees, respectively, passed by both the

Courts below, are affirmed and maintained. Decree-sheet

be prepared accordingly. Also, the pending application(s),

if any, are also disposed of. No costs.

(Sureshwar Thakur) Judge 20th August, 2021 Kalpana

.