(2) Jiva Nand vs (2) Nand Lal
2022 Latest Caselaw 95 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
              ON THE 5th DAY OF JANUARY, 2022
                        BEFORE
    HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA




                                                       .
          REGULAR SECOND APPEAL NO. 25 OF 2019





    Between:­
    (1) SANT RAM, S/O SH. DAGI, R/O
    V.P.O.    BHANTHAL,     TEHSIL





    KARSOG, DISTRICT MANDI, H.P.

    (2) JIVA NAND, S/O SH. HET RAM,
    R/O V.P.O. BHANTHAL, TEHSIL
    KARSOG, DISTRICT MANDI, H.P.





                                        ......APPELLANTS
    (BY MS. MEERA DEVI AND MR.
    HEMANT     KUMAR   THAKUR,
    ADVOCATES)
    AND


    (1) GOVERDHAN, S/O LATE SH.
    JANKU, R/O V.P.O. BHANTHAL,
    TEHSIL    KARSOG,  DISTRICT
    MANDI, H.P.


    (2) NAND LAL, S/O LATE SH.
    JANKU, R/O V.P.O. BHANTHAL,
    TEHSIL    KARSOG,  DISTRICT
    MANDI, H.P.




                                          .....RESPONDENTS





    (BY MR. R.K. SHARMA, SENIOR
    ADVOCATE   WITH  MR.   ARUN
    KUMAR, ADVOCATE FOR R­1 AND





    R­2)

    (3) KESHAV RAM, S/O SH. HET
    RAM, R/O V.P.O. BHANTHAL,
    TEHSIL    KARSOG,   DISTRICT
    MANDI, H.P.
    (4) NATER SINGH, S/O SH. HET
    RAM, R/O V.P.O. BHANTHAL,
    TEHSIL    KARSOG,   DISTRICT
    MANDI, H.P.




                                      ::: Downloaded on - 31/01/2022 23:33:32 :::CIS
                                    2


                                 .....PROFORMA­RESPONDENTS

    (NONE FOR PROFORMA RESPONDENTS)

    RESERVED ON: 30.11.2021




                                                              .

    WHETHER APPROVED FOR REPORTING? Yes.

                 This appeal coming on for disposal at the admission





    stage this day, the Court delivered the following:­

                                       JUDGMENT

The instant regular second appeal has been

maintained by the appellants, who were plaintiffs before the

learned Court below (hereinafter to be called as "the plaintiffs"),

laying challenge to the judgment and decree, dated 15.09.2018,

passed by learned Additional District Judge, Mandi, District

Mandi, H.P., camp at Karsog, in Civil Appeal No. 39 of 2017,

whereby the judgment and decree, dated 22.05.2017, passed by

learned Civil Judge, Karsog, District Mandi, H.P., in Civil Suit

No. 69 of 2012, was affirmed, wherein suit of the plaintiffs was

dismissed.

2. Briefly the facts, which are necessary for

determination and adjudication of the present appeal, are

that on 23.12.2003, the plaintiffs and defendant, Janku

(since deceased) have executed a written compromise qua

"Taksim Khangi" to the effect that defendant is first party to

the composition deed, who had filed an application for

partition of the joint land against the plaintiffs and others

situated in muhal Banthal, Tehsil Karsog, District Mandi,

H.P., before AC 1st Grade, Karsog, District Mandi, H.P., qua

the suit land and some other land, which application was

.

decided in favour of the defendant. The share of the

defendants, measuring 00­17­06 bighas as contained in

Khasra Nos. 82, 266 and 267, the suit land, which is in

possession of the plaintiffs, and has fallen in the share of the

defendant, being excess share, in the possession of the

plaintiffs, shall remain with the plaintiffs, the 2 nd party in the

compromise as before. They shall continue to remain in

possession of the same and appropriate the usufructs of the

same. Deceased defendant and his LRs are bound by the

compromise. In case any party to the compromise takes

recourse to the partition, either khangi or through legal

process, in that eventuality the aforesaid referred share

which is in their possession excess to their share would be

considered as second party's individual share alongwith

possession and ownership and appeal which Het Ram and

Sant Ram (plaintiffs) second party has filed against the order

of AC 1st Grade against the first party before the Collector,

Karsog has been withdrawn by them. Both the parties shall

be bound by the compromise. They shall not file application

for partition qua the suit land or appeal against the same and

the compromise would be considered as a last decree.

Further, in case any party violates the terms of the

compromise, each party shall have right to take action in

.

accordance with the compromise and in case of violation,

they shall have a right to get the compromise executed in

accordance with law. It is further alleged that on 29.12.2013,

to give finality and legal shape to the agreement, the

defendant 1st party sold the suit land to the plaintiffs for a

consideration of Rs. 25,000/­ through "Gharelu Samjhota"

agreeing that defendant shall have no right, title and interest

of any type over the suit land in any manner whatsoever and

in case the plaintiffs so wish, the defendant shall make

revenue entry in favour of the plaintiffs, qua the suit land at

the consideration of Rs. 25,000/­ having been received. The

defendant had done all this with the consent of his family

members including wife, son and signed the same in

presence of the witnesses. It is further averred by the

plaintiffs that they have been requesting the defendant to

make entry in their favour in the revenue record by executing

a sale deed, but the defendant has been evading the same on

one pretext or the other. To this effect, legal notice was also

served upon the defendant on 26.05.2011 and a concocted

reply of the same was sent. It is averred that cause of action

arose to the plaintiffs when the agreement, dated 29.12.2003

was executed and when legal notice dated 26.05.2011 to

execute the sale deed was served upon the defendant and a

.

concocted reply thereof was received. Also on 25.04.2012,

when the plaintiffs received summons from AC 1 st Grade,

Karsog, regarding partition of the suit land and some other

land. Further, also when the plaintiffs changing the very

status of the defendant as a owner of suit land, already

having been sold to the plaintiffs and the defendant

thereafter, threatened the plaintiffs to forcibly occupy the suit

land and selling the same to 3rd person in the last week of

July, 2012 and right to sue accrued on 16.08.2012, when the

defendant finally refused to desist from his illegal acts.

Hence, the present suit.

3. By filing written statement, claim of the plaintiffs

was resisted and contested by the defendant and preliminary

objections qua maintainability, limitation, no enforceable cause

of action, estoppel, non­joinder and mis­joinder of necessary

parties were taken. On merits, it has been admitted that

defendant has filed the partition case before learned AC 1 st

Grade, Karsog, which is pending adjudication. It is averred that

defendant came to know about the compromise and agreement

when a legal notice, dated 26.05.2011 was served upon him by

the plaintiffs through their counsel and the same was replied by

his counsel. It is further averred that defendant never agreed to

sell the suit land to the plaintiffs and never delivered possession

.

of the suit land to them and no consideration amount was

received by the defendant from the plaintiffs. Lastly, a prayer

for dismissal of the suit was made.

4. In replication, averments of the written statement

are denied and contents of the plaint are reasserted.

5.

The learned Court below framed the following

issues for determination and adjudication:

"1.

Whether the plaintiffs are entitled for

the decree of permanent prohibitory injunction, as prayed? OPP

2. Whether the plaintiffs are entitled decree for declaration to the effect that

they are in possession by way of family arrangement? OPP

3. Whether the suit of the plaintiffs is not maintainable, as alleged ? OPD

4. Whether the suit is barred by limitation?

OPD

5. Whether the plaintiffs have no cause of action, as alleged ? OPD

6. Whether the plaintiffs are estopped to

file the suit by their own act and conduct ? OPD

7. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? OPD

8. Relief.

6. After deciding all the issues in negative, suit of the

plaintiffs was dismissed. Subsequently, the plaintiffs

maintained an appeal before the learned first Appellate Court,

which was also dismissed and the findings recorded by the

learned Court below were upheld. Hence the present regular

second appeal.

.

7. The learned counsel for the appellants has argued

that the learned Courts below have failed to appreciate the

evidence and documents correctly and the findings are perverse.

She has further argued that the agreement was a legal and

enforceable agreement and the learned Court below have failed

to appreciate this fact also. So, in these circumstances, the

judgments and decrees passed by the learned Courts below be

set aside and present appeal be allowed.

8. On the other hand, learned Senior Counsel

appearing on behalf of respondents No. 1 and 2 has argued that

the documents are interpreted correctly and the evidence has

been appreciated as per law and since there is no substantial

question of law involved in the present appeal, the same be

dismissed.

9. In order to appreciate the rival contentions of the

parties, I have gone through the record carefully.

10. In order to prove their case, the plaintiffs have

examined Sant Ram as PW­1, who deposed that defendant is his

uncle and plaintiff, Het Ram is his cousin. He further deposed

that defendant has filed a partition suit before Tehsildar, Karsog

against the plaintiffs. Decision whereof was given in favour of

the defendant and he got 0­17­06 bigha more than that of his

share. The appeal against the same was filed before SDM,

Karsog and ultimately a compromise was effected, vide which it

.

was agreed that extra land, i.e. 0­17­06 bigha will remain with

the plaintiffs. The compromise was scribed by one Harish

Sharma, Document Writer. He deposed that compromise was

reduced into writing before 13 years ago and defendant has put

his thumb impression upon it, alongwith witnesses to the

compromise. Plaintiff, Het Ram also put his signatures upon the

compromise. Thereafter, within six days another document was

reduced into writing vide which plaintiffs agreed to give Rs.

25,000/­ as consideration, to the defendant. Till then, the

disputed land was under the ownership and possession of the

plaintiffs, as it was agreed by the defendant that compromise is

definite and he also agreed to registered the extra land in their

favour. In cross­examination, he agreed to the suggestion that

land of defendant is joint with the plaintiffs. He admitted that as

per partition, 0­17­06 bigha land belonged to defendant. He

agreed to the suggestion that compromise was not written

before any revenue court. He denied that in agreement, dated

29.12.2003, no consideration had been given to the defendant.

He admitted that compromise was reduced into writing in Tehsil

Office by document writer, Harish Sharma. He denied that

thumb impression of Janku was taken fraudulently on blank

paper. He stated that the defendant in his conscious state of

mind had himself put his thumb impression on the document.

He denied that due to higher market value of the suit land, the

.

plaintiffs have fraudulently executed a document on behalf of

the defendant.

11. PW­2, Padma Nand, has deposed that he know the

parties to the litigation. The disputed land situated in Muhal

Bhanthal, which is recorded as joint land. He further deposed

that the defendant has filed a suit for partition before AC 1 st

Grade, Karsog and order was passed in favour of Janku. He

deposed that approximately 17 biswas of land of defendant was

found in possession of the plaintiffs and thereafter, appeal was

filed by the defendant before SDM, Karsog. However, on account

of family agreement executed between the defendant and the

plaintiffs, the appeal was withdrawn and compromise was

effected that the land which belongs to defendant possessed by

the plaintiffs will remain in their possession. This witness

alongwith one Padma Ram has signed as witness to such

compromise and deposed that defendant has put his thumb

impression upon the same. He also proved Ext. PW­2/A which

was executed in the year, 2003. He further deposed that after

the aforesaid compromise, another compromise was also

effected within a week, wherein the plaintiffs agreed to give Rs.

25,000/­, as consideration of that land to the defendant. In

cross­examination, he admitted that in Ext. PW­2/A, the

defendant did not mention anything about transfer of his

property. He agreed to the suggestion that as per Ext. PW­2/A,

.

the defendant has withdrawn his suit, to which compromise

was effected. He also agreed to the suggestion that compromise

Ext. PW­2/A had been written when he reached the spot. Self

stated that when it was reduced into writing, he was present

there. He denied that no consideration amount was given to the

12.

r to defendant in his presence. Self stated that consideration

amount was given to the defendant after a week.

PW­3, Padma Ram has deposed that the defendant

had demanded consideration of Rs. 25,000/­ from the plaintiffs

to give his share to them and at that time the family of the

defendant was also present on the spot. In cross­examination,

he deposed that compromise, Ext. PW­2/A was reduced into

writing at about 2:00 p.m. He agreed to the suggestion that

there is no statement regarding transfer of property by the

defendant in favour of the plaintiffs. He also agreed to the

suggestion that in agreement, Ext. PW­2/A, consideration price

was not mentioned. He admitted that the suit land is joint till

today between the parties. He denied that thumb impression of

the defendant upon Ext. PW­2/A were taken fraudulently. He

also denied that consideration amount was not given to the

defendant in his presence. However, admitted that Rs. 2500/­

was given to the defendant by the plaintiffs in his presence.

13. PW­4, Harish Sharma, Document Writer, has

deposed that Ext. PW­2/A was written by him and bears his

.

signatures. He further deposed that contents of the compromise

were reduced into writing as per the version of the parties and

were read over and explained to them. He deposed that the

defendant has put his thumb impression upon the same. In

cross­examination, he admitted that in compromise, Ext. PW­

2/A, there is no mention about the transfer of share by the

defendant in favour of the plaintiffs, i.e. 0­17­06 bigha, neither

there is any mention of consideration amount in favour of the

defendant. He feigned ignorance about the fact as to when he

drafted the compromise.

14. PW­5, Perm Singh, deposed that Ext. PW­5/A was

reduced into writing by him, which he has written as per the

version of the parties. He further deposed that parties told him

that they got the matter compromised for a consideration of Rs.

25,000/­, which plaintiffs gave to the defendant in his presence

and in presence of witnesses, Padma Nand and Padma Ram. He

deposed that at the time of compromise, both the families were

present there. In cross­examination, he denied that he had not

written compromise, Ext. PW­5/A. He admitted that he is not a

licensed document writer. He also admitted that stamp paper,

Ext. PW­5/A was bought by plaintiff No. 2. He admitted that on

the back of stamp paper, there was no thumb impression of

Janku. He denied that in this document date and time was

written subsequently. He also denied that consideration amount

.

of Rs. 25,000/­ was not given in his presence. He deposed that

currency notes were given in the form of Rs. 500/­ and Rs.

100/­. He feigned ignorance about the fact that both the parties

compromised the matter in Tehsil. He also feigned ignorance

about the compromise recorded in the year, 2003. He denied

that witnesses Padma Nand and Padma Ram were not present

on the spot. He admitted that nature of property was not

described in Ext. PW­5/A.

15. To controvert the claim of the plaintiffs, defendant

has examined Baishakhi Devi, who while appearing in the

witness box as DW­1, has deposed that disputed land is the

joint property. She further deposed that her deceased husband,

i.e. Janku Ram (defendant) has filed an application for partition

before revenue authority and the same was contested and

appeal was filed to Financial Commissioner's Court, which was

decided in their favour. However, later on they entered into

compromise and the plaintiffs have prepared false Bian nama.

She deposed that her husband has neither sold any property to

the plaintiffs, nor received any consideration amount. She

deposed that after preparing false document, the plaintiffs sent

a legal notice through their counsel, which was duly replied by

them. She also proved on record notice, Ext. DW­1/A and reply

thereof, Ext. DW­1/B. She further deposed that the plaintiffs

tried to grab the property, as it is valuable and is upward and

.

downward the road. She feigned ignorance about affidavit, Ext.

PW­5/A. In cross­examination, she admitted that Janku was

real uncle of the plaintiffs. She further admitted that there was

some compromise between Janku and Het Ram, which was

effected in Tehsil Karsog on 23.12.2002. She denied that vide

said compromise they left their property. She admitted that

landed property of Het Ram was more than that of her share to

the extent of 0­17­6 bigha. She admitted that decision was given

in favour of Janku. She feigned ignorance about the fact that

compromise, Ext. PW­2/A was challenged before the Collector,

which was later on withdrawn. She also feigned ignorance about

the fact that her husband, i.e. defendant, received consideration

amount of Rs. 25,000/­ as per Ext. PW­2/A. She deposed that if

compromise has been written in their presence, there should be

signatures of all the family members.

16. If the statement of PW­1 is seen, though he has

deposed that family agreement has been executed by Janku on

23.12.2003, vide which he agreed to leave his land, but he

admitted that in the said agreement, Janku did not reduce into

writing any deposition to sold the property to the plaintiffs. This

witness has also admitted that suit for partition was decided in

favour of the defendant and thereafter the matter was

compromised between them by the efforts of an advocate. Now

coming to the statement of PW­2, who is happened to be the

.

witness to compromise, Ext. PW­2/A. In his examination he also

admitted that suit for partition was decided in favour of

defendant, Janku, but the compromise was reduced into writing

by one Sh. Harish, document writer and thereafter, Janku put

his thumb impression upon Ext. PW­2/A and then he alongwith

PW­3 signed as witnesses.

17. to The statements of PW­1 and PW­2 nowhere reveal

that compromise, Ext. PW­2/A was read over and explained to

the defendant and thereafter, he put his thumb impression

upon it. Further, PW­2 has admitted that compromise, Ext. PW­

2/A was executed in Tehsil premises, however, perusal of this

document shows that it was not registered by any competent

authority, as is required under the law.

18. PW­3, who was also the witness to compromise,

Ext. PW­2/A, in his examination­in­chief has deposed that at

the time when consideration of Rs. 25,000/­ was paid to the

defendant, the family of the defendant was also present there,

however, if statement of DW­1, widow of defendant is seen, she

denied that consideration was paid to them. This witness in his

cross­examination has admitted that in Ext. PW­2/A, the

defendant did not mention anything about transfer of his

property. The next witness, i.e. PW­4, though, admitted that

Ext. PW­2/A has been read over and explained to the defendant,

however, deposed that nothing has been reduced into writing

.

that what should be the consideration in lieu of transfer of

defendants' land in favour of the plaintiffs. PW­5, writer of

Affidavit, Ext. PW­5/A, during the course of his cross­

examination admitted that he is not a licensed document

writing writer. He also admitted that nature of property was not

described in Ext. PW­5/A.

19. to From the statements of aforesaid witnesses, it can

be inferred that plaintiffs could not prove their case by leading

convincing and cogent evidence that the fact regarding writing

of compromise, Ext. PW­2/A was well within the knowledge of

the defendant. A bare reading of Ext. PW­2/A shows that

defendant had to leave his part of land in favour of the

plaintiffs, however, no reasonable cause has been given in the

said document, as to why he is leaving the land in favour of the

plaintiffs, when the partition suit was decided in his favour.

After Ext. PW­2/A, the plaintiffs have placed on record Ext. PW­

5/A, Affidavit, executed by the defendant in presence of

witnesses Padma Nand and Padma Ram. So, the learned Courts

below have rightly held that both these documents, i.e. Ext. PW­

2/A and Ext. PW­5/A have no legal value in the eyes of law, as

the affidavit, Ext. PW­5/A was not in the shape of proper

evidence, whereas, compromise, Ext. PW­2/A was not executed

before any competent authority Even if it is presumed that Ext.

PW­2/A was executed by the defendant, then also as per Indian

.

Contract Act, it is not a valid agreement for want of

consideration, as no consideration has been mentioned in the

family settlement.

20. Further, if Jamabandi for the year 2009­10 is seen,

it shows that the defendant alongwith other co­sharers is

owner­in­possession of the suit land and no partition till date

has taken place. So, the transfer, if any, by the defendant is

void in the eyes of law and the learned Courts below have rightly

dismissed the suit/appeal of the plaintiffs.

21. In view of the discussion made hereinabove and the

fact that there is no substantial question of law involved in the

instant appeal, which requires consideration, the same is

dismissed.

22. The appeal, so also pending application(s), if any,

stand(s) disposed of accordingly.

(Chander Bhusan Barowalia) Judge 5th January, 2022 (raman)