(O&M)Bir Sen vs Jai Devi
2022 Latest Caselaw 10529 P&H

                         IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH


                        212                                          RSA No.3649 of 1987 (O&M)
                                                                     Date of Decision : 06.09.2022

                        Bir Sen                                                          ....Appellant

                                                         VERSUS

                        Jai Devi                                                       ....Respondent


                        CORAM : HON'BLE MRS. JUSTICE ALKA SARIN


                        Present :   Mr. R.P. Singh Ahluwalia, Advocate for the appellant.

                                    Mr. Manohar Lall, Advocate for respondent no.4 (ii).


                        ALKA SARIN, J. (Oral)

The present appeal has been preferred against the judgment and

decree dated 15.09.1987 passed by the lower Appellate Court reversing the

judgment and decree dated 25.10.1986 passed by the Trial Court.

The brief facts relevant to the present lis are that the plaintiff-

appellant filed a suit for declaration as well as consequential relief of

permanent injunction and possession on the ground that he is owner in

possession of land measuring 14 kanals and 2 marlas. It is averred in the

plaint that the plaintiff-appellant has become owner in possession of 14

kanals and 2 marlas of land on the basis of Gift Deed dated 11.10.1972

(Ex.PW1/1) executed by Jai Devi (defendant-respondent).

Learned counsel for the plaintiff-appellant would contend that it

has specifically been stated in the Gift Deed that besides 131 kanals 15

marlas of the land as described in the Gift Deed, Jai Devi (defendant-

JITENDER KUMAR 2022.09.07 09:43 respondent) was also co-owner of the Shamlat Patti and Shamlat Deh land I attest to the accuracy and integrity of this order/judgment Chandigarh

and hence, it is the contention that vide the said Gift Deed her entire

immovable property had been gifted to the plaintiff-appellant.

Per contra, learned counsel for the defendant-respondent

no.4(ii) has contended that there is no mention of the details of land

measuring 14 kanals and 2 marlas in the Gift Deed. However, details of land

measuring 131 kanals and 15 marlas have been given in the Gift Deed. It is

further the contention that partition regarding the Shamlat Patti land took

place on 24.03.1971 and Jai Devi was an absolute owner on the date of

execution of the Gift Deed dated 11.10.1972 and the said land had not been

included in the said Gift Deed and, hence, it cannot be inferred that the said

parcel of land measuring 14 kanals and 2 marlas (suit land) had also been

gifted vide Gift Deed dated 11.10.1972. It is further the contention that

earlier Jai Devi had filed a civil suit on 31.03.1977 for declaration that she is

owner in possession of 131 kanals and 15 marlas of land situated in village

Dahina and challenged the Gift Deed dated 11.10.1972 alleged to have been

executed by her in favour of the plaintiff-appellant herein as being null and

void and having been obtained fraudulently and by mis-representation and

under undue influence. The said suit was filed by Jai Devi (defendant-

respondent herein) as an indigent person. In reply to the application for suing

as an indigent person, the present plaintiff-appellant took a stand that Jai

Devi was owner of 14 kanals and 2 marlas of land and, hence, she could not

file the suit as an indigent person. Vide order dated 15.12.1979 (Ex.D8) the

application of Jai Devi (defendant-respondent herein) to sue as an indigent

person was dismissed. Learned counsel would further contend that though JITENDER KUMAR 2022.09.07 09:43 I attest to the accuracy and integrity of this order/judgment Chandigarh

the application stood dismissed vide order dated 15.12.1979, however, from

a perusal of Ex.D8 it was apparent that firstly, the Gift Deed was only qua

131 kanals and 15 marlas of land and secondly, even as per the plaintiff-

appellant, 14 kanals and 2 marlas of land qua which the present suit has

been filed was owned by Jai Devi.

I have heard learned counsel for the parties.

As per the law laid down by a Constitution Bench of the

Hon'ble Supreme Court in case of Pankajakshi (dead) through LR's &

Ors. vs. Chandrika & Ors. [2016 (6) SCC 157] there is no requirement for

framing of substantial question of law.

In the present case, the Gift Deed dated 11.10.1972

(Ex.PW1/1) gives the details of the land measuring 131 kanals and 15

marlas besides stating that the executant of the Gift Deed is owner of other

lands including some share in Shamlat Patti and Shamlat Deh. The argument

of learned counsel that the land measuring 14 kanals and 2 marlas i.e. the

suit land herein was also part of the Gift Deed cannot be accepted. The land

measuring 14 kanals and 2 marlas comprised in khasra no.82/10/2 (1-0)

11/1 (6-0) 126/6/1 (7-2) does not find mentioned anywhere in the Gift Deed.

Further, it has come in the evidence of PW-1, Lal Singh Patwari, who stated

that there had been a partition of the co-sharers with respect to Shamlat Patti

and Shamlat Deh and the land measuring 14 kanals and 2 marlas fell to the

share of the defendant-respondent and mutation qua partition was sanctioned

as far back as on 24.03.1971 i.e. prior to execution of the Gift Deed.

Though, the mutation stood sanctioned on 24.03.1971, the same was not JITENDER KUMAR 2022.09.07 09:43 I attest to the accuracy and integrity of this order/judgment Chandigarh

incorporated in the jamabandi till the year 1980-81. Hence, once it has come

on the record that partition had already taken place on 24.03.1971, it cannot

be held that the defendant-respondent was a co-sharer in the Shamlat Patti.

In any case, once the details of the suit land do not find mention in the Gift

Deed, it cannot be said that the said land was gifted vide Gift Deed dated

11.10.1972. Further, the defendant-respondent herein filed a suit challenging

the said Gift Deed as having been got executed fraudulently. In the said suit

she had filed an application for being permitted to sue as an indigent person

and a specific stand was taken by the plaintiff-appellant herein that Jai Devi

(defendant-respondent herein) was owner of 14 kanals and 2 marlas of land

and hence she could not sue as an indigent person. Vide order dated

15.12.1979 the application filed by defendant-respondent herein to sue as an

indigent person was dismissed holding that she had concealed the fact that

she was owner of 14 kanals and 2 marlas of land. It has been noticed in the

order dated 15.12.1979 that it is a stand of the plaintiff-appellant herein that

the defendant-respondent herein was owner of 14 kanals and 2 marlas of

land in Shamlat Patti in village Dahina which would necessarily mean that

the plaintiff-appellant himself understood that the said land was not included

in the Gift Deed. Had it been the case that the said land measuring 14 kanals

and 2 marlas i.e. the suit land was included in the Gift Deed even as per the

understanding of the plaintiff-appellant, such a stand would not have been

taken.

In view of above, I do not find any illegality or infirmity in the

judgment and decree passed by the lower Appellate Court. No question of JITENDER KUMAR 2022.09.07 09:43 I attest to the accuracy and integrity of this order/judgment Chandigarh

law, much less substantial question of law, arises in the present case. The

appeal, which is wholly devoid of any merits, is dismissed. Pending

applications, if any, also stand disposed off.

JITENDER KUMAR 2022.09.07 09:43 I attest to the accuracy and integrity of this order/judgment Chandigarh