Himachal Pradesh High Court
Jhabe Ram (Deceased) Through His Lrs vs Smt. Kaushalaya Devi And Anr on 6 May, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No. : 334 of 2023
.
Reserved on: 30.04.2024
Decided on : 06.05.2024
Jhabe Ram (deceased) through his LRs.
....Petitioners.
Versus
Smt. Kaushalaya Devi and Anr.
...Respondents.
Coram
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1 No
For the petitioners : Mr. Sanjeev Kuthiala, Sr.
Advocate, with Ms. Amita
Chandel, Advocate.
For the respondents : Mr. Naveen Kumar Bhardwaj,
Advocate.
Satyen Vaidya, Judge
By way of instant petition, petitioner has
assailed order dated 15.05.2023, passed by learned
1 Whether reporters of the local papers may be allowed to see the judgment?
Civil Judge, Banjar, District Kullu, H.P. in Civil Suit
No. 91/19/11.
.
2. Respondents herein are the original
plaintiffs in Civil Suit No. 91/19/11 before learned
Trial Court and petitioners herein are successor of
original defendant, Sh. Jhabe Ram. The parties
hereafter shall be referred to by the same status as
3. to
they hold before the learned Trial Court.
Plaintiffs have filed a suit for declaration
that they are the owners in possession of suit land,
which originally was owned by one Khim Dass and on
his death in 1976 was inherited by Smt. Radha Devi,
daughter of Sh. Khim Dass. Plaintiffs claim to have
further inherited the estate of their mother Radha
Devi, who is stated to have died in the year 1993.
Plaintiffs have further challenged mutation No. 3186,
dated 19.07.2005, whereby the suit land has been
mutated in the name of original defendant Sh. Jhabe
Ram on the basis of a will executed by one Sh.
Lotma.
4. Defendant has taken a defence that Khim
Dass was unmarried and hence Radha Devi was not
.
his daughter. It has also been pleaded that Lotma was
adopted son of Khim Dass and on the death of Khim
Dass, Lotma had inherited the estate of Khim Dass
including the rights in suit land. As per defendant,
Lotma had executed a will in respect of the suit land in
favour of the defendant and on such basis defendant
claim right, title or interest on the suit land and has
also justified the attestation of mutation No. 3186,
dated 19.07.2005.
5. During the pendency of the suit, defendant
filed an application under Order 6 Rule 17 of the Code
of Civil Procedure, for amending the written statement
by incorporating a fact that Khim Dass by way of oral
gift had gifted the land in favour of Lotma and such
fact was recorded, vide mutation No. 201, dated
07.03.1952.
6. Learned Trial Court dismissed the
application of the defendant for amendment, vide
order dated 27.06.2022, on the ground that the
written statement had been filed by the defendant in
the year 2011 and the application to amend the
.
written statement was filed in the year 2020, that too,
after conclusion of the evidence of parties. Defendant
was found to be lacking in diligence in not filing the
application for amendment on earlier occasion.
Defendant did not challenge the order dated
27.06.2022, passed by learned Trial Court, whereby
his application for amendment was dismissed.
7. Defendant filed another application under
Section 151 of the Code of Civil Procedure, seeking
leave of learned Trial Court to lead additional
evidence and to prove the rapat No. 203, dated
07.03.1952, on the basis of which mutation No. 201
was attested on the same day. The application for
additional evidence filed by the defendant has been
dismissed vide impugned order.
8. I have heard learned counsel for the parties
and have also gone through the record.
9. While passing the impugned order, learned
Trial Court has taken notice of the facts that
defendant had filed the written statement in the year
2011 and the application for leading additional
.
evidence was filed in the year 2022 at the stage when
the civil suit was listed for final arguments. In
between, defendant had filed an application under
Order 14 Rule 5 of the Code of Civil Procedure, which
was allowed. Thereafter, another application for
amendment of written statement was filed by
defendant, which was withdrawn. Yet again another
application for amendment of written statement was
filed, which was dismissed on 27.06.2022 and lastly,
the application for additional evidence was filed.
Learned Trial Court found lack of due diligence on the
part of the defendant. While dismissing the application
of defendant for additional evidence, learned Trial
Court further held that there was complete absence
of satisfactory reason for non-production of the
evidence at earlier stage despite having complete
knowledge of the fact.
10. Learned Senior Counsel for the defendant
has contended that defendant had sufficiently
explained the reason for delay in filing the application
which have not been considered by learned Trial
.
Court.
11. It is averred in the application for
additional evidence that the defendant was illiterate
and the revenue record being in Urdu language was
not in the knowledge of defendant. After the transfer of
relevant revenue record from general record room of
Kullu to Banjar, defendant had obtained the copy of
mutation No. 201, dated 07.03.1952.
12. Noticeably, defendant had not pleaded the
fact of oral gift made by Khim Dass in favour of
Lotma in the original written statement. Such being
the position, defendant could not have led any
evidence to prove a fact not pleaded. The case of the
defendant, as pleaded in the written statement is that
Lotma was adopted son of Khim Dass and in such
capacity had inherited the suit land after death of
Khim Dass. Defendant has further claimed right, title
or interest in the suit land on the basis of will executed
by Lotma in his favour. In alternative, defendant has
taken a plea of having perfected title over the suit
land by way of adverse possession.
.
13. In above background, no fault can be
found with the impugned order. Not only the
defendant was not entitled to lead any additional
evidence, as prayed for, by him, for the reasons which
weighed with learned Trial Court, he, otherwise, was
14. to
not entitled for lack of pleadings in that behalf.
Further, defendant had earlier made an
attempt to incorporate the plea with respect to the
oral gift allegedly made by Khim Dass in favour of the
Lotma by seeking to amend the written statement,
which was declined by learned Trial Court vide order
dated 27.06.2022. Defendant having failed to assail
said order had acquiesced with its validity and for
such reason also he could not be allowed to lead
additional evidence to prove a fact, which he was not
allowed to bring in his pleadings.
15. In result, there is no merit in the petition
and as such, the same is dismissed.
16. Pending miscellaneous application(s), if any,
shall also stand disposed of.
.
(Satyen Vaidya)
6 th
May, 2024 Judge
(sushma)
r to
