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2001 DIGILAW 155 (HP)

HEM CHAND v. TARA DUTT

2001-07-19

K.C.SOOD

body2001
JUDGMENT Kuldip Chand Sood, J. (Oral)-This second appeal, under Section 100 of the Code of Civil Procedure, is directed against the judgment and decree of learned Additional District Judge (I), Shimla, dated 26.11.1994. 2. In order to appreciate the controversy, facts in brief may be noticed: 3. The land subject matter of dispute was owned and possessed by Basti Ram and Jeet Ram. Proforma defendants 2 to 4 are the successors of Basti Ram and Jeet Ram. This land was sold by the proforma defendants after the death of Basti Ram and Jeet Ram to Tara Dutt defendant No. 1. 4. Case of the plaintiffs is that this land was gifted to their father Nand lal, 40 years before the filing of the suit, by an oral gift. The suit was filed on 8.6.1989. Therefore, according to the case of the plaintiffs, gift was made in June 1949. According to the case of the plaintiffs, the gift was oral. However, after the death of Basti Ram and Jeet Ram, entries, regarding succession in the revenue record, were made in favour of proforma defendants, being successors in interest of Basti Ram and Jeet Ram. These entries were made in disregard to the oral gift. The plaintiffs, therefore, moved an application for correction of revenue entries which was allowed by the competent authority. It is the further case of the plaintiffs that on the basis of wrong entries, proforma defendants 2 to 4 sold this land to defendant No.1. Such a sale, it is pleaded, is illegal and does not vest any right, title or interest in defendant No.1 in the land subject matter of dispute. Plaintiffs filed this suit, out of which present appeal arises, for declaration that they are owners in possession of the disputed land and for permanent injunction seeking to restrain the defendants from interfering with their possession. 5. Defendants contested the suit. The allegations were controverted. The case of the defendants is that no gift was made by Basti Ram and Jeet Ram in favour of father of the plaintiffs, as claimed by them. It is further stated that proforma defendants succeeded to the property in dispute and thereafter sold it to defendant No. 1 who is in possession of the same. The allegations were controverted. The case of the defendants is that no gift was made by Basti Ram and Jeet Ram in favour of father of the plaintiffs, as claimed by them. It is further stated that proforma defendants succeeded to the property in dispute and thereafter sold it to defendant No. 1 who is in possession of the same. The learned trial court found that the plaintiffs had not been successful in proving the gift of the disputed property in their favour and accordingly proceeded to dismiss the suit. 6. Dissatisfied, plaintiffs filed an appeal before the learned District Judge which was dismissed by the impugned judgment and decree of learned Additional District Judge (I), Shimla. 7. I have heard Mr. B.N. Misra, learned counsel for the appellants and Mr. G.D. Verma, learned Senior Advocate for respondent No.1. 8. So far question of Gift is concerned, it has been elaborately dealt with by the trial court as well as by the learned Additional District Judge. The evidence on record has been discussed in detail. Plaintiff No.1 appearing as PW-6 merely stated that his father along with the plaintiffs have been in possession of this land for the last 40 years. He did not say a word about the land having been gifted (by oral gift) either to their father or to the plaintiffs. Another witness of the plaintiff (PW-2) stated that Basti Ram and Jeet Ram gifted their shares to Hem Chand plaintiff in his presence. He went on to state that mutation to that effect was attested in the name of Hem Chand. Now it is the case of the plaintiffs that an oral gift was made in the name of their father, therefore, the evidence of PW-2, to the contrary, has rightly not been relied upon by the courts below. The mutation of gift, alleged to have been attested, in favour of Hem Chand was not produced on record. Plaintiff (PW-1) admitted that the land in dispute was inherited by proforma defendants from Jeet Ram. He further stated that both Basti Ram and Jeet Ram remained in possession till their death. If that be the position, obviously valid gift was not made as possession was not delivered to the donee. It is admitted position that girdwari was regularly held. Plaintiff (PW-1) admitted that the land in dispute was inherited by proforma defendants from Jeet Ram. He further stated that both Basti Ram and Jeet Ram remained in possession till their death. If that be the position, obviously valid gift was not made as possession was not delivered to the donee. It is admitted position that girdwari was regularly held. Had this land been gifted, name of the predecessor-in-interest of the plaintiffs would have been entered in the Girdwari of atleast an attempt would have been made by the predecssor-in-interest of the plaintiffs to record the factum of gift with the revenue authorities. Learned trial court has referred to Jamabandies for the year 1970-71 (Ex.DB), 1975-76 (Ex.DC), which show that Basti Ram and Jeet Ram were in possession of this land till their death. If the gift was made in the year 1949, as claimed, the possession of Basti Ram and Jeet Ram would not have been shown in the revenue record even after twenty five years of the oral gift. 9. Learned first Appellate Court after appreciating the evidence on record observed that there was no satisfactory evidence on record to show "that any oral gift was made and accepted by the plaintiffs or their predecessors-in-interest." 10. Learned counsel for the appellants submits that there is confusion in the judgment of the trial court in as much as the trial court observed that one of the witness stated that an oral gift was made by Basti Ram and Jeet Ram in favour of plaintiff Hem Chand. The case of the plaintiffs was that gift was made in favour of their father and not in favour of the plaintiffs and, therefore, the trial court was not justified in looking into the evidence of valid gift to Hem Chand. There appears to be some confusion or typographical error in this part of the judgment. Otherwise case of the plaintiffs is clear that an oral gift was made in favour of father of the plaintiffs, whereas own witness of the plaintiffs stated that gift was made in favour of one of the plaintiffs Hem Chand. This discrepancy will have no effect on the merits of the case. 11. So far mutation of possession in the name of plaintiffs is concerned, the same was made pursuant to an application of the plaintiffs for correction of the revenue entries. This discrepancy will have no effect on the merits of the case. 11. So far mutation of possession in the name of plaintiffs is concerned, the same was made pursuant to an application of the plaintiffs for correction of the revenue entries. It is admitted that no notice of such application was served upon the defendants. They were also not present when the spot was inspected by the concerned Kanungo. Report of the possession of the plaintiffs was given ex-parte. Such an entry in the revenue record indeed has no value and does not carry any weight. It has come in evidence that the Kanungo who inspected the spot stayed in the house of Hem Chand plaintiff for the night, which again shows that entry was changed stealthily by the concerned revenue officer in connivance with the plaintiffs. 12. Mr. B.N. Misra, learned counsel for the appellants, submits that both the trial court and the first appellate court have not appreciated the evidence in its correct perspective. This court in exercise of powers under Section 100 of the Code of Civil Procedure will not interfere in the second appeal even if the evidence has not been properly appreciated. 13. Substantial question of law may arise when vital evidence v/as omitted from consideration which if considered would have lead to an opposite conclusion or inadmissible evidence has been relied upon which if omitted would lead to different conclusion. 14. As observed in Vidyadhar vs. Manikrao and another (1999) 3 SCC 573 the findings of fact concurrently recorded by the trial court as also by the first appellate court cannot be upset by the High Court in the second appeal, under Section 100 of the Code of Civil procedure, unless it is shown that the findings are perverse and based on no evidence or no reasonable person could have come to such conclusion on the face of the evidence on record. This is not the situation in this appeal. 15. No question of law much less substantial question of law arises in this appeal. The same is dismissed. No costs.