Himachal Pradesh High Court
Widow Of Late Sh. Tot Ram vs Savitri And Air 1995 Sc 1684 on 8 December, 2021
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 8TH DAY OF DECEMBER, 2021
BEFORE
.
HON'BLE MR. JUSTICE SANDEEP SHARMA
REGULAR SECOND APPEAL NO. 8 OF 2006
Between:-
TOT RAM SON OF SH. HUKMU (SINCE DECEASED)
THROUGH HIS LEGAL REPRESENTATIVES:-
A) SHYAM LAL
SON OF LATE SH .TOT RAM
B) CHAMAN LAL
SON OF LATE SH. TOT RAM
C) LAL CHAND
SON OF LATE SH. TOT RAM,
D) DEVI SINGH
S/O SH. BALAK RAM
SON OF SH. TOT RAM (GRAND SON)
E) SMT TIKI DEVI
WIDOW OF LATE SH. TOT RAM
ALL R/O VILLAGE RAUGI PHATI AND KOTHI KAIS,
TEHSIL AND DISTRICT KULLU, H.P.
... APPELLANTS
(BY MR. SANJEEV KUTHIALA,
SENIOR ADVOCATE WITH
MS. ANAIDA KUTHIALA, ADVOCATE)
AND
1. SMT. PURKHI @ PIULI
WIDOW OF SH. THAKUR DASS
(DELETED)
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2
2. SMT. CHITTAR MANI
DAUGHTER OF SH. THAKUR DASS
R/O VILLAGE RAUGI,
PHATI AND KOTHI KAIS,
TEHSIL AND DISTRICT, KULLU,
H.P.
.
3. SMT. RAMI DEVI
DAUGHTER OF SH. THAKUR DASS,
PRESENTLY WIFE OF SH. LAL CHAND
R/O VILLAGE DOHLU NALA,
KOTHI MANDALGARH,
TEHSIL AND DISTRICT, KULLU,
H.P.
4. SMT. CHANDERMANI
DAUGHTER OF SH. THAKUR DASS
PRESENTLY WIFE OF SH. KHEKH RAM,
R/O VILLAGE KHOKHAN, KOTHI KANAWAR
TEHSIL AND DISTRICT KULLU,
H.P.
5. SMT. PREMI DEVI
D/O OF SH. THAKUR DASS
R/O VILLAGE DOHLU NALLAH,
TEHSIL & DISTT. KULLU
H.P.
PLAINTIFFS/RESPONDENTS
6. SMT. NOKHI
WIDOW FO SH. BELU
MOTHER OF SH. THAKUR DASS
(DELETED)
7. SMT. JAI DEVI
D/O SH. THAKUR DASS
AT PRESENT WIFE OF SH. LAL CHAND,
BOTH R/O VILLAGE RAUGI,
PHATI AND KOTHI KAIS,
TEHSIL AND DISTRICT KULLU,
H.P.
8. SH. RAM LAL
SON OF SH. THAKUR DASS
R/O VILLAGE RAUGI
PHATI AND KOTHI KAIS,
TEHSIL AND DISTRICT KULLU,
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3
H.P.
(EX PARTE)
.. PROFORMA DEFENDANTS/RESPONDENTS
(BY MR. MAAN SINGH, ADVOCATE
FOR R-2 TO R-5 AND R-7)
.
Whether approved for reporting:
This appeal coming on for orders this day, the court delivered the following:
JUDGMENT
CMP No. 63 of 2006
By way of instant application filed under Order XLI, rule 27 CPC,
appellant has sought to place on record copy of mutation No. 6309, dated
21.2.2001 (Annexure A-1) and copy of Jamabandi for the years 2000-2001
(Annexure A-2). Appearing respondents have filed reply to the application,
opposing the prayer made on behalf of the appellant(s).
2. From the pleadings of the parties, this court finds that the document
sought to be placed on record are germane to the decision of the instant
Regular Second Appeal as such, same are ordered to be taken on record.
Application stands accordingly disposed of.
RSA No. 8 of 2006
3. By way of instant Regular Second Appeal filed under S.100 CPC,
challenge has been laid to judgment and decree dated 29.12.2005 passed by
learned District Judge, Kullu, District Kullu, Himachal Pradesh in Civil Appeal
No. 81/2005, whereby judgment and decree dated 12.8.2005 passed by
learned Civil Judge (Senior Division), Lahul & Spiti at Kullu, Himachal
Pradesh in Civil Suit No. 71/2002, has been partly modified.
4. Precisely, the facts of the case, as emerge from the record, are that
respondents Nos. 1 to 5-plaintiffs (hereinafter, 'plaintiffs'), filed a suit for
declaration with consequential relief of permanent prohibitory injunction
against defendant No.1 Ram Lal, proforma respondents Nos. 3 and 4, and the
appellant-defendant No. 2 (hereinafter, 'defendant No.2). During the
pendency of the appeal before this court, the original appellant/defendant
.
No.2 Tot Ram, died and now his legal representatives are pursuing the
appeal.
5. Plaintiffs claimed before learned trial Court that defendant No.1
Ram Lal and proforma respondents Nos. 6 to 8 are entitled to be declared as
co-owners-in-possession of 1/8th share measuring 2-11-0 Bigha out of total
land comprised in Khata Khatauni No. 961/1552, Khasra Nos. 29, 30, 31,
188, 222, 225, 257, 318, 327, 334 and 341 Kita-11, measuring 20-8-0 Bigha,
1/8th share measuring 0-5-0 Bigha out of land comprised in Khewat Khatauni
No. 962/1554, measuring 2-1-0 Bigha, 795/6330 shares measuring 0-13-0
Bigha out of land comprised in Khewat Khatauni 963/1554, Khata No. 13,
measuring 5-6-0 Bigha, as described in the Jamabandi for the years 1995-96,
situate in Phati and Kothi Kais, Tehsil and District, Kullu, Himachal Pradesh
(hereinafter, 'suit land') and Will dated 3.8.1995 (Ext. D-A), set up by
defendant No.1 is forged and fictitious and as such, the entries showing
defendant No.1 as owner-in-possession are wrong and illegal and further that
the sale deed No. 1699 dated 4.12.2001 executed by defendant No.1 in
favour of defendant No.2 is invalid and illegal, and the defendants be
restrained from making any sort of interference in the ownership and
possession of the plaintiffs and proforma defendants over the suit land. It is
averred by the plaintiffs that Shri Thakur Dass died intestate on 14.8.1990
leaving behind him, plaintiffs, defendant No.1 and proforma defendants Nos. 3
and 4, as his only legal heirs, who are entitled to succeed to the suit land in
equal shares. It is further averred that the mutation No. 625, dated 13.12.1996
on the basis of intestate succession was sanctioned in favour of plaintiffs,
defendant No.1 and proforma defendants, in equal shares but defendant
.
No.1, in connivance with the Scribe and the marginal witnesses, set up a
forged and fictitious Will dated 3.8.1995 (Ext. DW-3/A), allegedly executed by
Thakur Dass in his favour and on the basis of said forged and fictitious Will, in
connivance with the revenue officials, got mutation No. 6259 dated 6.11.2001
(Ext. P-2) attested and sanctioned in his favour. Plaintiffs also claimed that on
the strength of forged and fictitious Will and the mutation, defendant No.1
executed bogus and void sale deed No. 1699, dated 4.12.2001 (Ext. DW-3/A)
and sold two Bigha of land out of the land comprised in Khata Khatauni No.
961/1552 measuring 20-8-0 Bigha, without any right, title or interest, on the
basis of which defendant No.2 started making interference with the ownership
and possession of the plaintiffs and proforma defendants over the suit land.
6. Defendant No.1-Ram Lal, refuted the aforesaid claim of the
plaintiffs on the ground of maintainability, estoppel, valuation, suppression of
true and material facts and limitation. On merit, he denied that Thakur Dass
died on 14.8.1990 and claimed that he died on 3.3.1996. Defendant No.1
pleaded that Thakur Dass has executed a valid and last Will dated 3.8.1995
(Ext. D-A), in lieu of services rendered by defendant No.1, in his favour, out of
love and affection, on the strength of which he has become absolute owner in
exclusive possession of the suit land, as such, plaintiffs and proforma
defendants have no right, title or interest in the suit land. It is further averred
that mutation No. 625 was wrongly attested in favour of plaintiffs, defendant
No.1 and proforma defendants. Defendant No.1 further pleaded that he was
competent to sell the land and he had executed a legal and valid sale deed.
7. Defendant No.2-Tot Ram, i.e. present appellant, contested the suit
by taking preliminary objections and claimed hat he is a bona fide purchaser
.
for valuable consideration hence, suit is not maintainable. Besides above,
defendant No.2 disputed that Thakur Dass died on 14.8.1990 and claimed
that he had expired in the year 1996. Defendant No. 2 claimed that Thakur
Dass had executed a valid Will dated 3.8.1996(Ext. D-A) in favour of
defendant No.1 and hence, defendant No.1 succeeded to the suit as an
absolute owner. He also averred in the written statement that prior to
purchasing the suit land, he had made local investigation regarding ownership
and possession of defendant No.1 and defendant No. 1 was found in actual
possession of the land and was also recorded as owner-in-possession in the
revenue record and even a bargain was struck in the presence of the plaintiffs
and proforma defendants, who never raised any objection regarding the title
of the suit land and only thereafter, defendant No.2 through a registered sale
deed dated 4.12.2001 (Ext. DW-3/A) purchased two Bigha of land out of the
suit land for a sale consideration of Rs. 86,000/-, which was paid by defendant
No.2 bona fide and in good faith to defendant No.1. Defendant No.2 claimed
that he is owner-in-possession of the suit land and plaintiffs have no right, title
or interest over the same.
8. On the basis of pleadings of the parties, learned trial Court framed
following issues for determination:
1. Whether the share in the suit property previously owned by
Thakur Dass devolved on plaintiffs and defendants No.1, 3 and
4 as alleged? OPP
2. Whether the plaintiffs are in joint possession of the suit
property? OPP
3. Whether the plaintiffs are entitled to decree of joint possession?
OPP
5.; Whether the mutation No. 6259, dated 6.11.2001 is illegal, null
.
and void?
OPP
6. Whether the sale of the part of the suit land through sale deed
No. 1699 dated 4.12.2001 by the defendant No. 1 in favour of
defendant No.2 is null and void? OPP
7. Whether Thakur Dass died on 14.8.1990? OPP
8. Whether the plaintiffs are estopped from filing this suit by their
act and conduct? OPD
9. Whether the suit is time barred? OPD
10. Whether the plaintiffs have not come with clean hands and have
suppressed the material facts? OPD
11. Whether the suit is not properly valued, if so, what is the correct
value?
OP parties
12. Whether Thakur Dass executed a valid Will dated 3.8.1995 in
favour of defendant No. 1? OPD
13. Relief:"
9. Learned trial Court, on the basis of evidence led on record by
respective parties, partly decreed the suit of the plaintiffs and held them and
the defendants Nos. 1, 3 and 4 to be joint owners of suit land. Learned trial
Court also held sale deed No. 1699, dated 4.12.2001 (Ext. DW-3/A), executed
by defendant No.1 in favour of defendant No.2, to be legal and valid and
dismissed the prayer of the plaintiffs for declaring sale deed to be null and
void. Learned trial Court, by way of relief of permanent prohibitory injunction in
favour of the plaintiffs and proforma defendants No. 3 and 4, restrained
defendants Nos. 1 and 2 from interfering in the suit land, in any manner.
10. Interestingly, being aggrieved and dissatisfied with the aforesaid
judgment and decree passed by learned trial Court, whereby sale deed
.
executed by defendant No.1 in favour of defendant No.2 was held to be valid,
plaintiffs filed an appeal in the court of learned District Judge, Kullu, but
defendant No.1 Ram Lal, as well as defendant No.2 chose not to lay any
challenge to the judgment and decree passed by learned trial Court, despite
the fact that the plaintiffs alongwith defendant No.1 and proforma defendants
were held to be joint owners of the suit property.
11. Learned District Judge, Kullu, by way of judgment and decree dated
29.12.2005, accepted the appeal and reversed the findings recorded by
learned trial Court on issue No. 6, whereby sale of part of suit land made
through sale deed No. 1699, dated 4.12.2001 by defendant No. 1 in favour of
defendant No.2 was held to be legal and valid. Learned first appellate Court
modified the judgment and decree passed by learned trial Court to the extent
that defendant No. 1 was only a cosharer with the plaintiffs and proforma
defendants to the extent of 1/8th share measuring 2-11-0 Bigha out of total
land denoted by Khata Khatauni No. 961/1552, Khasra Nos. 29, 30, 31, 188,
222, 225, 257, 318, 327, 334 and 341 Kita 11, measuring 20-8-0 Bigha, as
such, was entitled to sell the land, only to the extent of his share and sale
deed in favour of defendant No.2 exceeding his share is null and void and
shall be deemed valid to the extent of his share only. Rest of the findings of
learned trial Court were upheld. In the aforesaid background, defendant No.2,
who has purchased 2 Bigha of land by way of sale deed No. 1699 (Ext. DW-
3/A), from defendant No.1-Ram Lal, has approached this Court in the instant
proceedings, praying therein to set aside the findings returned by learned first
appellate Court inasmuch as sale deed Ext. DW-3/A exceeding his share out
of 2 Bigha, has been declared null and void.
.
12. Present appeal came to be admitted on following substantial
questions of law on 13.1.2006:
1. Whether the learned courts below have misread and mis-appreciated
the pleadings and the evidence on record, both oral and documentary
and on account of such misreading and mis-appreciation the findings
are bad in law?
2.
Whether the execution of the Will Ex DA having been duly proved in
accordance with provisions of Section 63 of the Indian Succession Act
by examining the scribe DW-4 and attesting witness DW-1, the same
could be held to be validly executed and whether the circumstances
so held to be suspicious could be made out contrary to the law laid
down in AIR 1997 HP-43 Shakunta vs. Savitri and AIR 1995 SC 1684
and whether such findings are sustainable?
3. Whether a transferee acting in good faith after taking reasonable
prudent care regarding the title of the property on basis of inquiry has
discharged the onus envisaged under Section 41 of the transfer of
Property Act and whether the onus thereafter shifts to the real owner
that the transferee had notice of defect in the transferor's title and
whether such sale without discharge of onus by the alleged real owner
can be held to be void or voidable?
4. Whether on the basis of the consent expressed or implied of the
persons interested in the immovable property, a person is the
ostensible owner and thereafter transfer of such immovable property
for valid consideration is valid, and whether thereafter such transfer
can be held to be defective whereas the transferee has shown that he
has acted in good faith. taking reasonable care and made inquiries
and thereafter purchased the land?
13. Since all the substantial questions of law are inter-linked, as such,
same are being taken up together for determination, to avoid repetition of
discussion of evidence.
14. I have heard learned counsel for the parties and perused the
.
material available on record.
15. Having heard learned counsel for the parties and perused the
material available on record, this court finds that the plaintiffs filed a suit for
declaration with consequential relief of permanent prohibitory injunction
against defendants including the present appellant (defendant No.2) averring
therein that the plaintiffs, defendants Nos. 1, 3 and 4 are joint owners of the
suit property being legal heirs of late Thakur Dass, who died intestate and as
such, mutation No. 659, dated 6.11.2001, sanctioned in favour of defendant
No.1 showing him to be absolute owner of the suit land on the strength of
Will, allegedly executed by late Thakur Dass bequeathing his entire property
in favour of defendant No.1, is null and void and they are not bound by the
same. Though the defendant No.1 Ram Lal, by way of written statement,
refuted the aforesaid claim and asserted that he has become absolute owner
of suit property on account of Will, executed in his favour by late Thakur
Dass, but such plea of him was not accepted by learned trial Court, who, on
the basis of evidence collected on record by respective parties held the Will to
be shrouded by suspicious circumstances, however, learned trial Court, found
sale deed dated 4.12.2001, to be legal and valid, for the reason that
defendant No.1 otherwise being one of the legal heirs of late Thakur Dass
was entitled to 1/8th share in the property alongwith the plaintiffs, defendants
Nos. 3 and 4, as such, he could sell his share. Defendant No.2 also claimed
that defendant No.1 had become absolute owner on strength of the Will Ext.
D-A, dated 3.8.1995, as such, sale made in his favour vide sale deed dated
4.12.2001 (Ext. DW-3/A) is legal and valid. However, such plea of his was not
accepted but the sale made in his favour vide sale deed dated 4.12.2001 was
.
held to be legal and valid on the ground that defendant No.1 Ram Lal was
competent to sell his 1/8th share in the property, which comes out to 2-11-0
Bigha. Aforesaid finding returned by learned trial Court was never laid
challenge in appeal by the defendants, including appellant-defendant No.2, as
such, same has attained finality qua them.
16. Plaintiffs being aggrieved on account of aforesaid finding returned
by learned trial Court, preferred an appeal in the court of learned District
Judge, Kullu which came to be allowed partly vide judgment and decree dated
29.12.2005. Learned District Judge, while modifying judgment and decree
passed by learned trial Court, held that defendant No.1 was only a cosharer
with the plaintiffs and defendants Nos. 3 and 4 to the extent of 1/8th share
measuring 2-11-00 Bigha out of the land comprised in Khewat Khatauni No.
961/1552, Kita 11, Khasra Nos. 29, 30, 31, 188, 222, 225, 257, 318, 327, 334
and 341, measuring 20`-8-0 Bigha and was entitled to sell only to the extent of
his share, hence, the sale deed Ext. DW-3/A, exceeding his share is null and
void and same is valid to the extent of his share.
17. Mr. Sanjeev Kuthiala, learned senior counsel assisted by Ms.
Anaida Kuthiala, Advocate, while appearing for defendant No. 2, though
vehemently argued that the aforesaid finding returned by learned District
Judge is totally perverse and contrary to record and could not be recorded in
light of the pleadings and evidence adduced on record by respective parties
but, this court finds no reason to agree with the aforesaid submission, for the
reason that though learned first appellate Court upheld the finding of learned
trial Court that defendant No. 1 Ram Lal, being cosharer to the extent of 1/8th
share was entitled to sell his share but clarified that the sale deed, exceeding
.
his share is null and void.
18. In the case at hand, record reveals that defendant No.1, Ram Lal,
after having sold 40/408 shares out his 1/8th share in the suit land, also sold
11/408 shares in favour of one Kewali, as is evident from copy of Jamabandi
for the years 2000-2001, annexed as Annexure A-2 with the CMP No. 63 of
2006 filed under Order XLI, rule 27 CPC, meaning thereby that defendant
No.1, Ram Lal, has already sold his entire share of 2-11-00 Bigha, out of his
1/8th share in the suit property. But since the Will, Ext. D-A has been held to
be shrouded by suspicious circumstances and no appeal, whatsoever, ever
came to be filed against aforesaid finding returned by learned trial Court on
behalf of defendant No.1- Ram Lal, plea made on behalf of defendant No.2
with regard to correctness of the finding returned by learned Court below qua
execution of Will, Ext. D-A, cannot be gone into in the instant proceedings and
as such, substantial question of law No.;2 needs no determination at this
stage.
19. Similarly, this Court finds that defendant No.2, while justifying sale
made in his favour by defendant No.1, vide sale deed, on the strength of Will,
Ext. D-A, claimed that since he had purchase a portion of land under bona
fide belief that defendant No.1 is the absolute owner of the property, as such,
sale made in his favour otherwise requires to be protected in terms of S.41 of
the Transfer of Property Act. Though the learned Courts below, held the Will,
ext D-A to be shrouded by suspicious circumstances, but yet held defendant
No.1 entitled to sell his 1/8th share in the suit land, as a consequence of
which, sale deed made in favour of defendant No.1 vide sale deed, Ext. DW-
3/A, came to be upheld, hence, question of protecting his right, if any, in terms
.
of S.41 of the Transfer of Property Act does not arise, as far as present
proceedings are concerned, especially when defendant No. 2 has not been
able to show that defendant No.1 Ram Lal has already sold some land out of
his share to some other person, as a consequence of which, land sold to
defendant No.2 vide sale deed would decrease.
20. This court finds from the record (page-60 of paper book) that
subsequent to sale of 40/408 shares out of 1/8th share by defendant No.1
Ram Lal, he sold 11/408 shares in favour of one Kewali, meaning thereby
defendant No.1 has sold his entire share of 2-11-00 Bigha.
21. Careful perusal of sale deed, Ext. D-A clearly reveals that 40/408
shares came to be sold to defendant No.2 i.e. 2 Bigha, entry qua which
already stands recorded in the revenue record, as is evident from Jamabandi
for the years 2000-2001, Annexure A-2 annexed with CMP No. 63 of 2006,
vide mutation No. 6309, hence, sale, if any, made by defendant No.1 qua
11/408 shares in favour of one Kewali, has no bearing, if any, on the share of
defendant No.2, which was admittedly 2-0-0 Bigha.
22. This court, after having scanned entire evidence available on
record, is of the view that the learned first appellate Court has dealt with each
and every aspect of the matter meticulously, as such, it cannot be said that
there is any misreading of evidence by it.
23. Substantial questions of law are answered accordingly.
24. Now, it would be appropriate to deal with the specific objection
raised by the learned counsel representing the defendants with regard
to maintainability and jurisdiction of this Court, while examining
.
concurrent findings of law and facts returned by both the Courts below.
Learned counsel for the respondents, invited the attention of this Court
to the judgment passed by Hon'ble Apex Court in Laxmidevamma and
Others vs. Ranganath and Others, (2015)4 SCC 264, wherein the
Hon'ble Supreme Court has held:
"16. Based on oral and documentary evidence, both the courts below
have recorded concurrent findings of fact that the plaintiffs have
established their right in A schedule property. In the light of the
concurrent findings of fact, no substantial questions of law arose in the
High Court and there was no substantial ground for reappreciation of
evidence. While so, the High Court proceeded to observe that the first
plaintiff has earmarked the A schedule property for road and that she
could not have full-fledged right and on that premise proceeded to hold
that declaration to the plaintiffs' right cannot be granted. In exercise of
jurisdiction under Section 100 CPC, concurrent findings of fact cannot
be upset by the High Court unless the findings so recorded are shown
to be perverse. In our considered view, the High Court did not keep in
view that the concurrent findings recorded by the courts below, are
based on oral and documentary evidence and the judgment of the High
Court cannot be sustained." (p.269)
25. Perusal of the judgment, referred hereinabove, suggests that
in exercise of jurisdiction under Section 100 CPC, concurrent findings of
fact cannot be upset by the High Court unless the findings so recorded
are shown to be perverse. There can be no quarrel (dispute) with
regard to aforesaid observation made by the Apex Court and true it is
that in normal circumstances High Court, while exercising powers under
Section 100 CPC, is restrained from re-appreciating the evidence
available on record.
26. The Hon'ble Apex Court in Parminder Singh versus Gurpreet
Singh, Civil Appeal No. 3612 of 2009, decided on 25.7.2017, has held
as under:
.
"14) In our considered opinion, the findings recorded by the three
courts on facts, which are based on appreciation of evidence
undertaken by the three Courts, are essentially in the nature of
concurrent findings of fact and, therefore, such findings are binding on
this Court. Indeed, such findings were equally binding on the High
Court while hearing the second appeal."
27. It is quite apparent from the aforesaid exposition of law that
concurrent findings of facts and law recorded by both the learned Courts
below can not be interfered with unless same are found to be perverse
to the extent that no judicial person could ever record such findings. In
the case at hand, as has been discussed in detail, there is no perversity
as such in the impugned judgments and decrees passed by learned
Courts below, rather same are based upon correct appreciation of
evidence as such, deserve to be upheld.
28. Consequently, in view of detailed discussion made herein
above, I find no merit in the appeal at hand, which is accordingly
dismissed. Judgment and decree passed by learned first appellate
Court are upheld.
29. Pending applications, if any, are disposed of. Interim directions,
if any, stand vacated.
(Sandeep Sharma),
Judge
December 8, 2021
(vikrant)
