Himachal Pradesh High Court
Govind vs Santosh Kumar And Others on 3 July, 2024
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
RSA No. 15 of 2023
Decided on 03rd July 2024
Govind ...Appellant
Versus
.
Santosh Kumar and others ...Respondents
Coram
Hon'ble Mr. Justice Ajay Mohan Goel, Judge
1
Whether approved for reporting? Yes
For the appellant: Mr. V.S. Chauhan, Senior Advocate, with
Mr. Arsh Chauhan, Advocate.
For the respondents: Mr. Aman Parth Sharma, Advocate, for
respondent No.1.
Mr. Anup Rattan, Advocate General, with
Mr. Rajpal Thakur, Additional Advocate
General for respondents No.2 and 3.
Ajay Mohan Goel, Judge (Oral)
By way of this Regular Second Appeal, the appellant
has assailed the judgments and decrees passed by the learned
Courts below, in terms whereof, the suit for declaration and
permanent prohibitory and mandatory injunction filed by the
appellant was dismissed and the appeal also met with the same
fate.
2. Brief facts necessary for the adjudication of the appeal
are that the plaintiff filed a suit for declaration and permanent
prohibitory as well as mandatory injunction on the ground that he
was co-owner in possession of the land comprised in Khata/Khatoni
No.32/35, Khasra No.231, to the extent of 132/640, share which
came to more than 2 biswas, out of total 11 biswas, situated in
Mauja Balana, Hadbast No.621, Tehsil and District Solan,, H.P., as
.
per copy of jamabandi for the year 2007-08. Defendant No.1 was
owner in possession of the land comprised in Khata/Khatoni No.17
min/20, Khasra No.533/230/1, measuring 4 bighas (4 bishwas)
situated in Mauza Balana Tehsil and District Solan, H.P. On
25.09.2012, defendant No.1 had entered into an agreement with the
plaintiff, in terms whereof, defendant No.1, had agreed to purchase
one biswas of land, out of his share from Khasra No.231 for a
consideration of Rs.3,00,000/-. It was agreed between the parties
that plaintiff shall execute the sale deed with respect to one biswa of
land in favour of defendant No.1 with specific tatima after getting
NOCs from other co-owners. It was mentioned in the agreement that
in lieu of the said transfer of land in his favour, defendant No.1
agrees to leave a road/path of 9 feet in width and length originating
from Damrog Jatoli Road upto the boundary of the plaintiff towards
the Jatoli side in Khasra No.533/230/1 as shown in red ink of the site
plain, which was part of the said agreement as Annexure-A, as a
passage leading to the landed property of the plaintiff. It was also
agreed that said path shall be common and for the use of all co-
owners of Khasra No.231 along with defendant No.1, but, it shall
remain in the ownership of defendant No.1. As per the plaintiff that
when the sale deed was executed, the defendant with a fraudulent
and dishonest intent got the sale deed registered in his favour by
.
showing the consideration for transfer of the property to be
Rs.40,000/- instead of Rs.30,00,000/- and defendant No.1 did not
get inserted the clause of the agreement dated 25.09.2012 relating
to the 9 feet path. When the plaintiff refused to sign the sale deed,
then, at the foot note of the sale deed, a condition in the shape of
note was written that second party has agreed to leave a path/strip 9
feet in width and length originating from Damrog Jatoli side in
Khasra No.533/230/1 free of cost as a common passage for the use
of both the parties. As per the plaintiff, defendant No.1 had no right
to raise any construction over this portion of the land, which was
agreed to be kept as a path. However, as the defendant ignoring the
said recital and contents of the agreement as also sale deed, got a
site plan sanctioned for the construction of a house over the said
portion of the land, hence the suit.
3. The defendant contested the suit, inter alia on the
ground that the sale deed executed between the plaintiff and the
defendant was drafted at the instance of plaintiff and signed by
plaintiff after going through the contents of the same. The sale
consideration mentioned therein was at the behest of the plaintiff. It
was also the stand of the defendant that the note that was inserted
on the bottom of sale deed after its execution and registration by the
plaintiff was neither agreed nor signed by the defendant. It was also
.
the stand of the defendant that he had kept the path on the spot for
his own use and he denied that he was not having any right to raise
any construction on Khasra No.531.
4. The suit was dismissed by the learned trial Court by
holding that the plaintiff had not produced any cogent and
convincing evidence except his self-serving statement to prove that
the foot note at the end of the sale deed was incorporated with the
consent of defendant No.1. Learned trial Court held that the plaintiff
had to stand on his own legs and it was for the plaintiff to produce
best evidence to demonstrate that such foot note in the sale deed
was entered at the time of the execution and registration with the
consent of the defendant, but plaintiff failed to do so. Learned trial
Court also observed that defendant examined Balraj Kaundal as
DW-2, who was a witness to the sale deed and this witness
supported the case of the defendant and in his cross-examination he
specifically denied that when he signed the sale deed, there was a
foot note at red mark 'A' in the said deed. Learned Court also
observed that place for signature of purchaser and seller was left
blank below the foot note, which raised serious doubt on the
contention of plaintiff that it was inserted at the time of execution of
the sale deed. It held that had any alternation or addition etc. been
made in the sale deed, then, it ought to have been signed by both
.
the parties, but, in the absence of all this, it could not be established
that the plaintiff was having a genuine cause.
5. Leaned trial Court further held that the allegation of the
plaintiff that defendants No.2 and 3 had illegally sanctioned the site
plan of defendant No.1 was also without any merit, as the statement
of the draftsmen of the Divisional Town Planning Office Solan, H.P.,
duly proved that there was no connivance between defendant No.1
and defendants No.2 and 3, as record proved that with regard to
construction carried out by the defendants in deviation of the
sanctioned plan action stood initiated against him.
6. In appeal, learned Appellate Court confirmed the
findings of the learned trial Court. Learned Appellate Court held that
it was the case of the plaintiff that defendants had purchased the
land from the plaintiff on the basis of an agreement dated
25.09.2012 and NOC was obtained from other co-sharers only on
the ground that the defendants would leave a 9 feet path towards
the land of the plaintiff. It held that plaintiff did not examine any
co-sharer to substantiate this contention of his. It also held that
evidence on record demonstrated that plaintiff miserably failed to
establish that the note at the end of sale deed Ex.PW-1/A was part
of the sale deed. It held that the findings returned by the learned trial
Court were sustainable and they did not demonstrate any
.
misappreciation of the fact etc. or evidence on record and, therefore,
called for no interference.
7. Feeling aggrieved, the plaintiff has filed this second
appeal.
8. Having heard learned Senior Counsel appearing for the
appellant and having perused the judgments and decrees passed by
both the learned Courts below, this Court does not finds any infirmity
therein nor any substantial question of law involved in the appeal.
9. There are concurrent findings returned by both the
learned Courts below that as the note in the sale deed was not
signed by the parties, it could not be read as part of the sale deed.
The factum of the note being unsigned by the parties to the sale
deed is a matter of record and also a matter of fact. Not only this,
the sale deed in issue is dated 03.12.2012. The suit was filed after
11 months of the execution of the sale deed. There is no cogent
explanation that has come forth from the appellant herein as to why
the note was not signed by the parties to the sale deed. This in fact
substantiates the contention of the respondents that the note was
appended in the sale deed later on by the plaintiff with a dishonest
intent. Otherwise also, this Court is of the considered view that it is
not the agreement to sell which has to be executed, but, the sale
deed. In the absence of their being any duly ratified recital in the
.
sale deed, in terms whereof, the defendants was bound to leave 9
feet path towards the land of the plaintiff, the findings returned by
both the learned Courts below that the note appended to the sale
deed, which was unsigned was of no effect are correct findings and
do not call for any interference. Therefore, as both the learned
Courts below have correctly returned the findings concurrently
against the plaintiff and in favour of the defendants and no
misreading or misappreciation of the pleadings or evidence was
demonstrated before this Court, no interference therewith is called
for.
10. Now I will deal with the application filed under Order 41
Rule 27 of the CPC praying that the appellant be allowed to examine
the scribe of the sale deed Smt. Anita Kumari, witness of agreement
Sh. Ram Rattan and also to recall PW-1 alongwith relevant Register
regarding Make note in the Registrar of interlineations, blank, eraser
or alteration.
11. It is mentioned in the application that despite exercise
of due diligence, plaintiff could not examine said witnesses before
the learned trial Court or the learned 1st Appellate Court and they are
necessary for the adjudication of this case.
12. This Court is of the considered view that the application
filed under Order 41 Rule 27 of the CPC is misconceived and prayer
.
made therein cannot be allowed. The provisions of Order 41 Rule 27
of the CPC are not intended to allow a party to fill up the lacuna in its
case.
13. The intent of the appellant by way of this application is
to fill up the lacuna. If appellant had exercised due diligence as is
mentioned in the application, then, why it failed to produce those
witnesses in the Court, which it now intends to produce has not
been sufficiently explained in the application. Otherwise also, the
parameters that are laid down in Order 41 Rule 27 of the CPC within
the ambit of which such an application can be allowed are not
fulfilled in the present case. It is not the case of the appellant that
the learned Courts below did not allow the appellant to lead the
evidence as it intends to lead by way of this application. It is also not
the case of the appellant that said witnesses could not be examined
despite due diligence. Further, this Court does not requires any
other material, then what is on record to decide the appeal.
Therefore, as this application filed under Order 41 Rule 27 of the
CPC is without any merit, the same is dismissed.
14. In view of the reasoning given hereinabove, this Court
does not finds any ground to interfere with the findings returned by
the learned Courts below and no substantial question of law is
.
involved in the appeal, the same is dismissed.
(Ajay Mohan Goel)
Judge
July 03, 2024
(Vinod)
r to
