Himachal Pradesh High Court
CIVIL APPEAL 277 of 2006 on 13 January 1971
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLARSA No. 277 of 2006.
Reserved on : 21st December, 2016.
Decided on : 30th December, 2016.
Bhag Singh and another …..Appellants-defendants.Versus Sona Kumari and others ....Respondents/Plaintiffs.
Coram:
The Hon’ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?[1]
For the Appellants:Mr. Dinesh Bhanot, Advocate. For Respondent No.1: Mr. G.S. Rathore, Advocate.
Nemo for other respondents.
Sureshwar Thakur, Judge.
The instant Regular Second Appeal stands directedagainst the impugned judgment and decree recorded by thelearned District Judge, Solan, camp at Nalagarh, DistrictSolan, H.P. in Civil Appeal No. 4-NL/13 of 2005/2002,whereby the latter while allowing the appeal of the 1 Whether reporters of the local papers may be allowed to see the judgment?
plaintiffs/respondents herein reversed the judgment anddecree of the learned trial Court. The defendants/appellantsherein stand aggrieved by the rendition of the learned FirstAppellate Court wherefrom they have instituted the instantappeal herebefore.
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2.The brief facts leading to the lis inter se the partiesare that the plaintiffs have filed the suit for seekingdeclaration to the effect that the plaintiffs are exclusiveowners in possession of the suit land detailed in the plaintand the defendants are having no right, title or interest overthe same and for the consequential relief of permanentprohibitory injunction for restraining the defendants fromclaiming any right, title or interest and alienating anddisturbing or interfering in the possession of the plaintiffs overthe suit land. It is pleaded that the defendant No.1 was theowner of land comprised in khewat/khatauni No.118/120,mbearing khasra No. 211, 212 and 2245, total land measuring18 biswas to the extent of one share and Kashmir Singh andRanvijay Singh were owners to the extent of three shares in the suit land, who had sold suit land to plaintiff No.1 vide saledeed No.1262 of 29.11.96 and the possession was alsodelivered at the spot. Kashmir Singh also sold his share toplaintiffs No.2 and 3 vide sale deed No.34 of 8.1.1998.Defendant No.1 sold his share out of khasra No.211 and 224to one Gokal vide sale deed No.607 of 31.5.1995. DefendantNo.1 had received full consideration and defendant No.1 isshown to be owner to the extent of 1 biswas and defendantNo.1 is having no right over the same. He has also sold hisshare to the plaintiffs and Gokal. The plaintiffs are inexclusive possession of the suit land and Abadi. DefendantNo.1 is threatening to execute some documents in favour ofdefendant No.2. Hence this suit. 3.The suit of the plaintiffs was contested by thedefendants by filing written statement denying the contentsof the plaint. Preliminary objections inter alia maintainabilityand estoppel have been taken. It is pleaded that defendantNo.1 has sold 9 karam X 3 karams of land in khasra No.211located towards north adjoining cooperative store building to
defendant No.2 on 24.10.1999. This land was in possessionof defendant No.1. Previously, S. Sh. Nanak and Mahantuwere owners of old khasra No. 262 measuring 18 biswas inequal share and after the death of said Mahantu his ½ sharewas inherited by Sh. Bhag Singh and his mother. Sh. Nankand Smt. Santo sold land measuring 13 biswas out of this landon 13.1.1971 to S. Sh. Kashmir Singh and Ranvijay Singh andmutation No.288 was sanctioned on 4.5.1971. S/Sh. KashmirSingh and Ranvijay Singh were put into possession ofthis land measuring 13 biswas, comprised in khatauniNo.135 of khata No.73. The remaining 5 biswas of land was inpossession of defendant No.1 The plaintiffs purchased 13biswas of land from Sh. Ranvijay Singh and subsequentlyone Kashmir Singh vide mutations No. 643 of24.12.1996 and mutation No.667 of 27.3.1998. DefendantNo.1 had sold 2 biswas of land to the plaintiffs andmutation No.668 of 26.5.1998 was attested. The landmeasuring 1 biswa having measurement 3 karams in East, 3karams in west, 9 karams North side of khasra No.211
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adjoining to the cooperative store building remained inpossession of defendant No.1. Defendant No1 was enjoyingpossession of 27 biswancies of land out of khasra No.211 andsold the same to defendant No.2. The plaintiffs are estoppedto file the suit and the suit is not maintainable. It is pleadedthat plaintiffs always admitted defendant No.1 to be owner of27 biswancies of land and they never interfered in thepossession of defendant No.1. The plaintiffs have alsoencroached over the area to the extent of 2 karams out ofland measuring 27 biswancies.
4.On the pleadings of the parties, the learned trialCourt struck the following issues inter-se the parties atcontest:-
1. Whether the plaintiffs have purchased the whole suit land vie different sale deeds executed in their favour in khasra No.211?suit land vie different sale deeds executed in their favour in khasra No.211?
2. Whether the defendants are interfering in the possession of the plaintiffs without any right, title orinterest? OPPpossession of the plaintiffs without any right, title orinterest? OPP
3. Whether the suit of the plaintiffs is not maintainablein the present form? OPDin the present form? OPD
4. Whether the plaintiffs are estopped from filing the present suit on account of act, conduct and acquiescence?OPDpresent suit on account of act, conduct and acquiescence?OPD
5. Whether the plaintiffs have not come to the Court with clean hands if so, it effect?OPDwith clean hands if so, it effect?OPD
6. Relief.
5. On an appraisal of evidence, adduced before the learned trial Court, it dismissed the suit of theplaintiffs/respondents herein. In an appeal, preferredtherefrom by the plaintiffs/ respondents herein before thelearned first Appellate Court, the latter Court while allowingthe plaintiffs' appeal, reversed the findings recorded by thelearned trial Court.
6.
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Now the defendants/appellants herein have instituted the instant Regular Second Appeal before this Courtassailing therein the findings recorded in its impugnedjudgment and decree by the learned first Appellate Court.When the appeal came up for admission on 01.08.2007, thisCourt, admitted the appeal instituted by thedefendants/appellants against the judgment and decree ofthe learned first Appellate Court, on the hereinafter extractedsubstantial question of law:-
1. Whether the judgment of the learned appellate courtcan be sustained when it ignores the provision ofSection 92 of the Evidence Act, allowing oralevidence to vary the terms of the written documentsnamely, sale deeds which are subject matter of thesuit?can be sustained when it ignores the provision ofSection 92 of the Evidence Act, allowing oralevidence to vary the terms of the written documentsnamely, sale deeds which are subject matter of thesuit?
Substantial question of Law No.1:
Issues
7. The sole contentious issue which enjoinspronouncement of a verdict thereupon pertains to the tritefactum of one Bhag Singh holding any absolute alienable titleto the extent of one biswa whereupon he would hold aconcomitant leverage to confer title qua it upon one Gur AvtarSingh besides in entwinement thereto the factum ofconveyance by Bhag Singh vis-a-vis one Gur Avtar Singhunder a registered deed of conveyance executed by him inthe latter's favour to the extent of one biswa suffering or notsuffering invalidation, would occur. For pronouncing a verdictupon the aforesaid trite factum, an allusion to the appositerevenue records unveils disclosures qua the co-owners vis-a-vis khasra No.262 subsequently whereto during the holding ofconsolidation operation, khasra No.211 stood assigned to it,inasmuch as one Bhag Singh holding therein a share of 4bsiwa 10 biswancies, one kashmir Singh holding therein a share of 6 biswas 15 biswancies and one Ranvijay Singhholding a share therein to the extent of 6 biswas 15biswancies. Both the aforesaid co-sharers in khasra No.211had under apposite deeds of conveyance respectivelyexecuted by them vis-a-vis their vendee(s), had respectivelytherein alienated qua the latter(s) 7 biswas despite theirs vis-a-vis khasra No.211 holding a share therein holding an arealesser than 7 biswas, on anvil of the Revenue Authoritiesconcerned while purveying them the apposite records theirsby adopting the well accepted precedent of rounding off,theirs making corresponding disclosures in the jamabandiesapposite to the suit land. However, the share in khasraNo.211 of one Bhag Singh held an area of 4 biswas 10biswancies thereupon on adoption of the customaryprecedent of rounding off, his share therein stood enjoined tobe computed to be holding an area of 4 biswas rather thanfive biswas as untenably done by the Revenue Authoritiesconcerned. Consequently, the working out by the Revenueauthorities concerned of the share of one Bhag Singh in khasra No.211 holding an area of 5 biswas whereupon onebiswa stood added to his share in khasra No.211, in sequelwhereof, he in excess to his share in khasra No.211 executedto the extent aforesaid a registered deed of conveyance vis-a-vis one Guravtar Singh cannot hold any legal validation,corollary whereof is qua the passing of title only to the extentof 1 biswas under a registered deed of conveyance executedby Bhag Singh vis-a-vis one Gur Avtar Singh also suffers theconcomitant fate of it warranting its standing set aside. 8.The above discussion unfolds the fact that theconclusions as arrived by the learned first Appellate Courtstand based upon a proper and mature appreciation of theevidence on record. While rendering the apposite findings, thelearned first Appellate Court has not excluded germane andapposite material from consideration. Accordingly, thesubstantial question of law is answered in favour of theplaintiffs/respondents and against the defendants/appellants. 9. In view of above discussion, the instant appeal isdismissed. In sequel, the judgment and decree rendered by the learned District Judge, Solan, camp at Nalagarh, DistrictSolan, H.P. in Civil Appeal No. 4-NL/13 of 2005/2002 isaffirmed and maintained. The parties are left to bear theirown costs. Decree sheet be drawn accordingly. All pendingapplications also stand disposed of.
30[th] December, 2016. (jai)
(Sureshwar Thakur)
Judge.
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