Himachal Pradesh High Court

Shri Joginder Singh vs Smt. Brahmi Devi on 25 October, 2021

Bench: Sandeep Sharma

         IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                   ON THE 25TH DAY OF OCTOBER, 2021

                               BEFORE




                                                           .
                HON'BLE MR. JUSTICE SANDEEP SHARMA





                REGULAR SECOND APPEAL NO. 256 OF 2011





    Between:-

    1.    SHRI JOGINDER SINGH
          SON OF SHRI HAKAM SINGH,





    2.    SHRI MALKIAQT SINGH
          SON OF SHRI BAKSHI RAM

    3.    SHRI VIJAY SINGH ALIAS VIJAY KUMAR

          SON OF SHRI BAKSHI RAM,
          ALL RESIDENTS OF VILLAGE NAKROH,

          TEHSIL AMB, DISTRICT UNA
                                                     ... APPELLANTS
    (BY MR. AJAY KUMAR, SENIOR ADVOCATE WITH
    MR. ROHIT, ADVOCATE)



    AND

    1.    SMT. SUDESH KUMARI




          W/O SHRI HOSHIAR SINGH
          R/O VILLAGE NAKROH, TEHSIL AMB,
          DISTRICT UNA





    2.    SHRI CHAIN SINGH
          SON OF SHRI HAKAM SINGH





          R/O VILLAGE NAKROH, TEHSIL AMB,
          DISTRICT UNA
                                                   .. RESPONDENTS

    (BY MR. N.K. THAKUR, SENIOR ADVOCATE WITH
    MR. DIVYA RAJ SINGH, ADVOCATE
    FOR R-1

    MR. ASHWANI KAUNDAL, ADVOCATE,
    FOR R-2)




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                                           2


    Whether approved for reporting: Yes.

     This appeal coming on for orders this day, the court delivered the following:

                                JUDGMENT

Being aggrieved and dissatisfied with the judgment and

decree dated 6.4.2011 passed by learned Additional District Judge,

Una, Himachal Pradesh in Civil Appeal No. 68/2010, affirming judgment

and decree dated 6.9.2010 passed by learned Civil Judge (Junior

Division), Court No. (1), Amb, District Una, Himachal Pradesh in Civil

Suit No. 237/99, titled Joginder Singh and others vs. Smt. Brahmi Devi,

whereby suit for specific performance of agreement to sell having been

filed by the appellants-plaintiffs (hereinafter, 'plaintiffs'), came to be

dismissed, plaintiffs have approached this Court in the instant appeal

filed under S.100 CPC, praying therein to decree their suit for specific

performance, after setting aside judgments and decrees passed by both

the learned Courts below.

2. For having bird's eye view of the matter, certain undisputed

facts as emerge from the record are that the plaintiffs filed a civil suit

seeking therein a direction to the respondents/defendant (hereinafter,

'defendant') to execute the sale deed qua land measuring 12 Kanal 1

Marla, out of land measuring 0-91-46 hectares bearing Khewat No. 118,

Khatauni No. 323, Khasra Nos. 3476, 3477, 3478, 3486, 3487, 3490,

3491, 3492, 3493, 3494, 3495 and 3496 corresponding to old Khasra

No. 2625, as entered in Nakal Jamabandi for the years 1994-95,

situated in Up Mohal Ram Nagar, Mauja Nakroh, Tehsil Amb, District

Una, Himachal Pradesh (hereafter, 'suit land') and in the alternative, to

grant relief for recovery of Rs.36,000/-. In the aforesaid suit, plaintiffs

averred that their predecessor-in-interest, Shri Hakam Singh was owner

of half share alongwith defendant qua land measuring 24 Kanal 2 Marla

but was in exclusive possession of whole of the land. Plaintiffs claimed

that after the death of Hakam Singh, plaintiffs Nos. 1 and 2 alongwith

their brother, Bakshi Ram came into possession, whereafter they sold

their share i.e. 12 Kanal 1 Marla to Smt. Vinod Kumari, Om Parkash

and Ranjit Singh, and rest of the land measuring 12 Kanal 1 Marla

remained in their possession. It is further averred in the plaint that a

suit titled Mehar Singh vs. Hakam Singh, which was pending before the

learned Sub Judge First Class, Una, was decided in favour of Hakam

Singh and Brahmi Devi on 5.5.1983, whereby predecessor-in-interest of

the plaintiffs was held to be in possession of the land measuring 24

Kanal 2 Marla. It is further averred that said case was contested on

behalf of the defendant by her Power of Attorney, Shri Daulat Ram and

total expenses of the said case were incurred by predecessor-in-interest

of the plaintiffs. Plaintiffs further averred in the suit that on 30.5.1987,

Daulat Ram, Power of Attorney of defendant entered into an agreement

to sell the above said half share i.e. 12 Kanal 1 Marla for a sum of Rs.

18,000/- to the plaintiffs and received Rs.12,000/- in lump sum after

deducting Rs.6,000/- i.e. litigation expenses incurred by their

predecessor-in-interest in earlier litigation. Time for execution of sale

deed was left open. It is further averred by the plaintiffs that the

defendant despite repeated requests by them to execute sale deed,

refused to do so, rather started demanding huge amount on the ground

that the prices of the land have increased manifold.

3. Since the defendant Brahmi Devi expired during the

pendency of the suit, her legal representative, namely Smt. Sudesh

Kumar, came to be impleaded as defendant in place of Brahmi Devi,

who while refuting the claim of the plaintiffs, on the grounds of

maintainability, cause of action, limitation and estoppel, also denied the

case of the plaintiffs on merit. Defendant while admitting that Hakam

Singh was owner-in-possession to the extent of half share and Brahmi

Devi was in possession of another half share also admitted that 12

Kanal 1 Marla was sold to Smt. Vinod Kumari etc. However, she denied

that the litigation expenses were borne by predecessor-in-interest of the

plaintiffs and Brahmi Devi (original defendant), had assured the

predecessor-in-interest of the plaintiffs about payment of any expenses

made by him in earlier suit. Defendant also claimed that Daulat Ram

never executed agreement to sell the share of defendant nor he was

authorized to do so by the defendant. Defendant claimed that neither

Brahmi Devi nor her legal representative received any sale

consideration rather, during her life time, Brahmi Devi had filed an

application for partition of suit land, which was decided on 22.8.1997.

4. On the basis of pleadings of the parties, learned trial Court

framed following issues on 23.1.2004, for determination:

"1. Whether the defendant had agreed to sell suit land vide agreement to sell dated 30.5.1987 in favour of the

.

plaintiffs? OPP

2. Whether plaintiffs are ready and willing to perform their part of contract? OPP

3. Whether the defendant has failed to perform her part of contract? OPP.

4. Whether the plaintiffs are entitled in alternative for the relief of recovery of Rs.36,000/-, as prayed for? OPP

5. Whether plaintiffs have no cause of action? OPD

6. Whether the suit is not maintainable? OPD

7. Whether the suit is barred by limitation? OPD

Whether the suit is bad for non-joinder of parties? OPD

9. Whether the suit is not properly valued, as alleged? OPD

10. Relief."

5. Subsequently, vide judgment and decree dated 6.9.2010,

learned trial Court dismissed the suit of the plaintiffs on merits as well

as on the ground of limitation. Being aggrieved and dissatisfied with the

aforesaid judgment and decree passed by learned trial Court, plaintiffs

preferred an appeal in the court of learned Additional District Judge,

Una, Himachal Pradesh i.e. Civil Appeal No. 68/2010, but the same also

came to be dismissed vide judgment and decree dated 6.4.2011. In the

aforesaid ground, plaintiffs have approached this Court in the instant

Regular Second Appeal, praying therein to decree their suit for specific

performance, after setting aside judgments and decrees passed by

learned Courts below.

6. Instant appeal came to be admitted by this court on

10.8.2011, on the following substantial questions of law:

"1. Whether the findings of the ld. Courts below are a result of complete misreading of pleadings, evidence and the

law as applicable to the facts of the case and particularly documents Exhibits PW-5/A, PW-2/A, PW-3/A, PD and PE and as such, palpably erroneous and illegal and if so to what effect?

2. Whether the learned Courts have misinterpreted the Power of Attorney PW-3/A?

7.

I have heard learned counsel for the parties and perused

the material available on record.

8. Since both the substantial questions of law are inter linked

and their answer can be explored by looking into entire pleadings and

the evidence, same are taken up together for determination

9. Having heard learned counsel for the parties and perused

evidence, be it ocular or documentary, led on record by parties vis-à-vis

the reasoning assigned learned Courts below, while dismissing the suit

for specific performance filed by the plaintiffs, this court finds no force in

the submission of learned senior counsel for the plaintiffs that the

learned Courts below have failed to appreciate the evidence in its right

perspective, rather, this court finds that both the learned Courts below,

have dealt with each and every aspect of the matter meticulously and

have rightly arrived at a definite conclusion that Daulat Ram, had no

right or authority to enter in agreement with the plaintiffs to sell the land

belonging to the original defendant, Brahmi Devi. In the case at hand,

pleadings as well as evidence led on record by respective parries

clearly reveals that the entire claim of the plaintiffs is based upon Power

of Attorney, Ext. PW-3/A, allegedly executed by the original defendant,

Brahmi Devi, in favour of Daulat Ram, authorizing him to transfer the

land in favour of the plaintiffs. Both these documents are in Urdu but

their Hindi versions have been placed on record and marked as "N" and

"M". Even if it is presumed that Power of Attorney executed by Brahmi

Devi, Ext. PW-3/A (Hindi version marked as "N") was executed by the

original defendant, Brahmi Devi, this court having perused aforesaid

document, finds substantial force in the submission of Mr. N.K. Thakur,

learned senior counsel for the defendant that it has been specifically

stated/recited in the Power of Attorney that the Attorney shall have no

right to sell, mortgage or sell her property. Though, very execution of

aforesaid Power of Attorney Ext. PW-3/A by late Brahmi Devi, is

doubtful in view of the evidence available on record, but even otherwise,

as has been taken note herein above, Daulat Ram had no right or

authority to enter into agreement to sell the disputed land, belonging to

Brahmi Devi, to the plaintiffs. Since very basis of suit of the plaintiffs is

delirious, no fault, if any, can be found with the judgments and decrees

passed by learned Courts below, dismissing the suit for specific

performance of agreement to sell dated 30.5.1987, Ext. PW-3/A, having

been filed by the plaintiffs.

10. Though, in the case at hand, plaintiffs have attempted to

carve out a case that Daulat Ram had agreed to sell half portion of suit

land for total consideration of Rs.18,000/- and a sum of Rs.12,000/- was

paid in cash whereas, remaining amount was to be adjusted towards

litigation expenses allegedly incurred by predecessor-in-interest of the

plaintiffs in earlier suit titled Mehar Singh vs. Hakam Singh but aforesaid

plea never came to be proved by the plaintiffs by leading cogent and

convincing evidence on record. There is no evidence available on

record suggestive of the fact that Daulat Ram allegedly paid the

consideration, if any, received by him from the plaintiffs to the actual

owner, Smt. Barhmi Devi. Besides above, there is no material collected

on record by the plaintiffs suggestive of the fact that the agreement to

sell, dated 30.5.1987, Ext. PW-3/A was entered into by Daulat Ram with

express and/or implied consent of the actual owner, Brahmi Devi.

11. Malkiat Singh, plaintiff No.3 entered into witness box as

PW-6. In his affidavit, Ext. PW-6/A, filed under Order XVIII, rule 4 CPC,

he reiterated the contents of the plaint in entirety. In his cross-

examination, this witness admitted that he never appeared in the court

during the pendency of the civil suit titled as Mehar Singh vs. Hakam

Singh etc. filed by predecessor-in-interest of the plaintiffs. He admitted

that the litigation expenses were not incurred by Hakam Singh in his

presence. He further admitted that the agreement was not executed in

his presence and money was not paid by the plaintiffs to Daulat Ram in

his presence. He admitted that in the year 1987, they and their father

started requesting Barhmi Devi (defendant) to execute the sale deed as

per terms and conditions of the agreement but in vain. This witness

feigned ignorance about the fact that Brahmi Devi had instituted a

partition case during her life time in the court of Tehsildar. Otherwise

also, it is not understood that once Brahmi Devi had agreed to sell her

share in the suit land, where was the occasion for her to institute the

partition case. r

12. Ext. PA i.e. Jamabandi for the years 1994-95 clearly

depicts that land is owned by defendant and others. possession of

Vinod Kumari is also recorded over the entire land as Hissedaran. In the

remarks column, a mention qua mutation No. 288 of partition has been

made. Ext. PB is copy of Misal Hakiat Bandobast for the years 1988-89,

which reflects that the land involved in suit is owned by Brahmi Devi and

others. Possession of Joginder Singh etc. is also recorded as

Hissedaran. In the remarks column, it has been mentioned that on the

basis of sale made by the plaintiffs, mutation No. 146 was sanctioned in

favour of Vinod Kumari etc.

13. Malkiat Singh i.e. PW-6, admitted that part of suit land is in

occupation of Smt. Vinod Kumari etc., which fact otherwise belies the

case of the plaintiffs. Factum with regard to sale of land by the plaintiffs

as well as their brother Bakshi Ram to Smt. Vinod Kumari and others

completely falsifies the entire claim of the plaintiffs, as set up in the

plaint.

14. There is yet another aspect of the matter i.e. limitation. PW-

6, in his statement deposed that the defendant refused to execute

conveyance deed as per Ext. PW-5/A in the year 1987, as such,

plaintiffs were required to file the suit within three years from the date of

refusal, whereas, suit at hand, came to be instituted in the year 1999, as

such, learned Courts below have rightly held the suit to be barred by

limitation. r

15. Consequently, for the reasons afore stated, this court finds

it difficult to agree with learned Counsel appearing for the plaintiffs that

the learned Courts below failed to appreciate the evidence in its right

perspective, more particularly, Power of Attorney, Ext. PW-3/A, rather,

this court is convinced and satisfied that both the learned Courts

below have appreciated the pleadings as well as evidence in its right

perspective, as such, no interference is called for.

16. Substantial questions of law are answered accordingly.

17. 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 defendants, 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)

18. 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.

19. 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."

20. 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.

21. Consequently, in view of detailed discussion made herein

above, I find no merit in the appeal at hand, which is accordingly

dismissed. Judgments and decrees passed by both the learned Courts

below are upheld.