Himachal Pradesh High Court
RSA/574/2016 on 29 December 2017
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA.
RSA No. 574/2016
Decided on: 29.12.2016
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Raj Kumari.
…Appellant.
Versus
Des Raj and others.
…Respondents.
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Coram:
Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? 1 No
For the Appellant:
Mr. R.K. Gautam, Sr. Advocate with
Mr. Gaurav Gautam, Advocate.
For the Respondents: Nemo.
_________________________________________________________
Justice Tarlok Singh Chauhan, Judge (oral):
This Regular Second Appeal has been preferred by the appellant-plaintiff against the concurrent findings of the fact recorded by the learned courts below whereby the suit as also the appeal came to be dismissed.
2.
The facts, in brief, as are necessary for the adjudication of this appeal are that the plaintiff filed a suit for declaration that he is owner in joint possession 1 Whether reporters of the local papers may be allowed to see the judgment?
of the land alongwith other co-sharers and out of the suit land, defendant asked the plaintiff to sell 5 kanals of land. Plaintiff on the request of the defendant agreed to sell 5 kanals of land out of his total land for sale consideration of Rs. 3,60,000/-. For this sale, defendant himself procured the revenue record from the concerned Patwari. However, on 27.2.2002 at place Dhan Chowk, on their way to Tehsil office for execution and registration of the sale deed, the defendant, in order to deceive the plaintiff, got him drunk. Thereafter, the defendant took the plaintiff to Tehsil office where the plaintiff under the belief that he is selling only 5 kanals of land signed the sale deed on 28.2.2002. The parties again visited the office of Sub- Registrar, Jawali for the registration of sale deed. The Sub-Registrar due to rush of work made no inquiry as to the extent of the land sold as also with regard to the sale consideration and registered the sale deed in hurried manner. Only symbolic possession of 5
kanals of land was delivered to the plaintiff.
3.
The
plaintiff
received
summons
for
partition proceedings initiated by the defendant from
the office of Tehsildar on the basis of which he came to know that the defendant by way of deceit had got executed and registered the sale deed of land measuring 00-89-56 Hms instead of 5 kanals. The plaintiff alleged that the sale deed dated 27.2.2002
was result of fraud and, therefore, not binding on the plaintiff and the consequent mutation No. 288 dated 8.7.2002 attested on the basis of said sale deed was also illegal, null and void. It was further alleged that only part of the sale consideration of Rs. 70,000/- was paid to the plaintiff, whereas the remaining amount was still due and payable by the defendant. However, since now the defendant was threatening to transfer the suit land, therefore, the instant suit for declaration to the effect that the plaintiff is owner in possession of the suit land and the sale deed dated 27.2.2002
bearing sale deed No. 138 is illegal, null and void. The plaintiff also prayed for consequential relief of permanent prohibitory injunction restraining the defendant from alienating or transferring the suit land.
In the alternative, he prayed for possession of the suit land.
4.
The defendant resisted and contested the suit by filing written statement taking preliminary objections of maintainability, locus standi, cause action, estoppel, suppression of material facts, valuation and suit being false and frivolous. On merits, it is denied that the plaintiff was owner in possession of the suit land by alleging that the defendant was owner in possession by virtue of the sale deed dated 27.2.2002. It was pleaded that the plaintiff had executed the sale deed in sound disposing mind out of his free will and volition for valuable consideration of Rs. 3,60,000/-. Possession was also delivered to the defendant and, therefore, the mutation was sanctioned as per the sale deed. The case of fraud etc. as alleged by the plaintiff was denied.
5.
From the pleadings of the parties, learned trial court on 16.6.2005 framed the following issues:
Citations and Judicial Treatment
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Cites
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Overruled / Questioned
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No negative treatment found
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1. Whether the sale deed dated 27.2.2002 is the result of fraud?
OPP
2. Whether the defendant is threatening to raise construction and to alienate the suit land, without any right to do so?
OPP.
3. Whether the sale consideration has not been paid to the plaintiff?
OPP.
4. Whether the plaintiff is having no locus standi to file the present suit?
OPD
5. Whether the plaintiff is estopped by his act and conduct from filing the present suit?
OPD
6. Whether the plaintiff has not come to the court with clean hands?
OPD
7. Whether the suit is not properly valued for the purpose of court fee and jurisdiction, if so, what is the value?
OPD.
8. Relief.
6. After recording the evidence and evaluating the same, learned trial court dismissed the suit. The appeal preferred against such judgment and decree also came to be dismissed by the first appellate court and aggrieved by the judgments and decrees of the learned courts below, the appellant-plaintiff has filed the instant appeal on the ground that the findings so recorded by the courts below are perverse and, therefore, deserve to be set aside.
7. At the outset I may observe that the plaintiff has failed to place on record any contemporaneous record to suggest that the value of the land sold by him to the defendant was far in excess or much more than what was mentioned in the sale deed.
8. The allegation that the defendant had committed fraud upon the plaintiff by making him consume liquor before executing the sale deed appears to be a cock and bull story. Had it been so, the least that was expected of the plaintiff was to have resorted to initiate action against the defendant. He could have conveniently lodged an FIR or filed a criminal case against the defendant and in addition thereto would have conveniently resorted to civil remedy promptly. Admittedly, the sale deed has been registered on 28.2.2002, whereas the suit came to be filed on 24.1.2005.
9. That apart, the findings recorded by the courts below are pure findings of fact, which cannot be interfered in Regular Second Appeal.
10. Learned trial court has meticulously evaluated oral as well as documentary evidence and only thereafter has reached to a conclusion that there was no merit in the suit filed by the plaintiff and dismissed the same. Whereas learned first appellate court has taken great pain not only to go through the pleadings and evidence led by the parties but has made incisive discussion of the law on the subject and only thereafter has proceeded to dismiss the appeal.
11. No question of law much less substantial question of law arises for consideration in this appeal.
12. Consequently, there is no merit in this appeal and the same is dismissed in limine, so also the pending application.
(Tarlok Singh Chauhan), Judge.
29.12. 2016 *awasthi*