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2004 DIGILAW 102 (HP)

KRISHANA DEVI v. SUBHADRA DEVI

2004-05-20

LOKESHWAR SINGH PANTA

body2004
JUDGMENT : Lokeshwar Singh Panta, J. This second appeal is directed against the judgment and decree dated 15th September, 2000 passed by learned District Judge (Forest), Shimla, District Shimla in Civil Appeal No. 177-S/13 of 1992/90 whereby the first appeal of the appellants herein against the judgment and decree of the learned Sub Judge, 1st Class, Theog, District Shimla in Civil Suit No. 212/1 of 1986 was dismissed. 2. Briefly stated the facts of the case leading to filing of the appeal are that Smt. Subhadra Devi plaintiff-respondent herein filed a suit for declaration with consequential relief of possession of the land comprising Khasra Nos. 18, 27, 33, 5, Kita 4 measuring 8-9 bighas situated in Mauza Bhagra doem, Pargana Chhabishi Tehsil Kothkhai, District Shimla, against the appellants- defendants. The plaintiff and Smt. Krishna Devi defendant No.2 are the daughters of Hari Singh & Matha whereas Nanak Chand defendant No.1 is the husband of defendant No.2. The case of the plaintiff was that her father made gift of the land in dispute in her favour on 20.7.1993. The plaintiff stated that during the period of Kharif 1981, the defendants got revenue entries qua the possession of the land in dispute entered in their favour without any right title and interest by misleading and suppressing the true facts. On the basis of the said revenue entries in the revenue record the defendants forcibly, illegally and without any reason took the possession of the land in dispute on 20.7.1983 without the consent of the plaintiff. The plaintiff then contended that possession of the defendants over the land in dispute was illegal and erroneous. On these premises, the suit for declaration with consequential relief of possession of the land in dispute came to be filed. 3. The defendants in their written statement resisted and contested the suit raising preliminary objections, inter alia, that the suit was not maintainable for declaration in the form in which it was laid and the gift was not accompanied by delivery of possession of the land in dispute in favour of the plaintiff, therefore, the gift was void and not enforceable. On merits, the defendants pleaded that Hari Singh made oral gift of the land in dispute in their favour about 15-16 years out of love and affection prior to filing of the written statement. On merits, the defendants pleaded that Hari Singh made oral gift of the land in dispute in their favour about 15-16 years out of love and affection prior to filing of the written statement. Defendant No.1 was adopted as "Ghar Jawain" after his marriage with defendant No.2 as Hari Singh had no male issue. The defendants then contended that they are coming in possession of the land in dispute since delivery of possession but their possession was recorded in the revenue record for the first time in the year 1981. They stated that Hari Singh filed an application before the revenue authority for the correction of revenue entries entered in their name which came to be dismissed upto the level of the Divisional Commissioner. The defendants also claimed by way of additional pleas that in case they were not found as owner in possession of the land in dispute on the basis of the oral gift then they have become owners by virtue of adverse possession as their possession over the land in dispute was peaceful, open without any interruption and hostile to the right, title and interest of Hari Singh. The defendants also alleged that the suit was not properly valued for the purposes of Court fees and jurisdiction, hence the same be dismissed. 4. The plaintiff in her replication refuted and controverted the averments made in the written statement and reaffirmed and reasserted the averments made in the plaint. 5. On the controversial pleadings of the parties the learned Lower Court framed the following issues: 1. Whether the plaintiff has become owner of the suit land by way of gift as alleged? OPP 2. Whether the suit is not maintainable for declaration as alleged? OPD. 3. If issue No.1 is proved, whether the gift in favour of the plaintiff is void as alleged? OPD. 4. Whether the suit land had been gifted orally to the defendants by the father of plaintiff as alleged?. OPD. 5. If issue No.4, is not proved, whether the defendants have become owners in possession of the suit land by way of adverse possession? OPD. 6. Whether the plaintiff is entitled to possession? OPD (objected to) 7. Relief. 6. The learned trial Court recorded findings on issue Nos.1 and 6 in the affirmative whereas findings on issue Nos. 3, 4 and 5 were recorded in negative. Resultantly, the suit of the plaintiff was decreed. OPD. 6. Whether the plaintiff is entitled to possession? OPD (objected to) 7. Relief. 6. The learned trial Court recorded findings on issue Nos.1 and 6 in the affirmative whereas findings on issue Nos. 3, 4 and 5 were recorded in negative. Resultantly, the suit of the plaintiff was decreed. 7. Feeling aggrieved and dis-satisfied by and against the judgment and decree of the learned trial court, the defendants filed first appeal. The First Appellant Court decided the appeal on 19.3.1997 by framing an additional issue which reads as under: 6A. Whether the suit is not properly valued for the purpose of court fee and jurisdiction, if so, its effect? OPD. 8. The suit was remanded to the learned trial Court with the direction to afford the parties an opportunity to lead evidence on the additional issue and then decide the civil suit afresh. 9. The plaintiff being aggrieved against the wholesale remand of the suit by the First Appellate Court filed appeal before this court This court vide judgment dated 5.6.1998 set aside the judgment and decree of the First Appellate Court dated 19.3.1997 directing the teamed trial Court to submit its report on the additional issue within period of four months to the First Appellate Court after affording an opportunity to the parties to lead evidence and after hearing them. Further the First Appellate Court was directed to dispose of the appeal in accordance with law and without any due delay after receipt of the report of the teamed trial court. The teamed trial court after recording finding on issue No. 6A on 29.10.1998 sent the report to the First Appellate Court. The First Appellate Court on consideration of the entire material on record dismissed the appeal of the defendants up-holding the judgment and decree passed by the teamed trial Court. Now, the defendants are in second appeal before this Court. 10. The second appeal was admitted by this Court on 8.12.2000 on the following substantial questions of law: 1. When admittedly the property involved in the suit was an orchard, was not the same required to be valued for the purpose of court fees and jurisdiction at the market value of the disputed property? Has not the value affected the jurisdiction of the trial court as well as the Appellate Court, are net the decree passed by both the Courts, below without jurisdiction? 2. Has not the value affected the jurisdiction of the trial court as well as the Appellate Court, are net the decree passed by both the Courts, below without jurisdiction? 2. Whether the lower Appellate Court has committed grave procedural error in not affording opportunity to the defendant-appellants to file objections when the lower Appellate Courts on the direction of this Honble Court on additional issue framed by it, i.e. Issue No. 6A, has not the same caused grave prejudice to the defendants-appellants thereby vitiating the impugned judgments and decrees? 3. Whether both the courts below have ignored the provisions of Land Revenue Act and misread and misconstrued the documentary evidence, whereby it was established that the defendant-appellants have acquired right of occupancy on account of long possession to the very knowledge of the owner, which fact was also depicted from the revenue record, could in such circumstances the status of the defendant-appellants be held to be those of trespassers? 4. Whether the findings of both the courts below are illegal, erroneous and perverse upholding the validity of the gift, when on account of admissions made by the donor himself the donor was out of possession, have not the courts below gone wrong in holding the gift to be valid merely on the ground that the same has been registered? Was not the delivery of possession an essential ingredient in such circumstances when the donor was incapable of delivering the possession of the property, subject-matter of the Gift?. 5. Whether both the courts below have wrongly rejected the claim of the defendant-appellants having acquired the title to the suit property by afflux of time? Are not such findings against the facts established on the record and proper proposition of law, When Shri Hari Singh, the owner himself admitted the fact that the defendant-appellants had taken forcible possession, Which possession was proved on record to be more than the prescribed period at the time of institution of the suit, particularly when the defendant-appellants were asserting the title to the suit property on the basis of the oral gift, was not such possession matured as adverse possession?. 11. I have heard Mr. Bhupinder Gupta, Sr. Advocate for the appellants-defendants and Mr. G.D. Verma, Sr. Advocate for the respondent-plaintiff. SUBSTANTIAL QUESTION NOS. 1 AND 2. 12. Both these questions are inter connected and taken up together for consideration. Mr. 11. I have heard Mr. Bhupinder Gupta, Sr. Advocate for the appellants-defendants and Mr. G.D. Verma, Sr. Advocate for the respondent-plaintiff. SUBSTANTIAL QUESTION NOS. 1 AND 2. 12. Both these questions are inter connected and taken up together for consideration. Mr. Bhupender Gupta, learned senior Advocate contended that judgment and decree passed by the First Appellate Court against the defendants in vitiated as the defendants were not afforded opportunity to file objections as provided under Order 41 Rule 26 CPC against the report of the learned trial court called for by the First appellate Court on additional issue N0.6A and the plaintiff had not valued the suit for the purposes of court fees and jurisdiction on the basis of the orchard land. I have examined the judgment and decree of the trial court. The record reveals that on remand the trial court decided issue N0.6A on 28.10.1998 and submitted its report to the First Appellate Court. The parties led their evidence on, the additional issue. The plaintiff filed the suit for declaration contending inter alia, that she was the owner of the land in dispute on the basis of gift deed dated 20.7.1983 executed by her father Hari Singh and also prayed for consequential relief of possession. In paragraphs 2 and 4 of the plaint it has been specifically stated that as the defendants had illegally and unauthorizedly dispossessed the father of the plaintiff from the land in dispute in the year 1981 and thereafter they had been shown in the possession of the land in dispute m the revenue record. Thus, it has become clear that the plaintiff was not in possession of the land in dispute when the gift was made in her favour on 20.7.1983. 13. The trial Court submitted its report to the learned First Appellate Court after recording the evidence of the parties on additional issue No. 6A and thereafter the First Appellate Court vide order dated 9.11.1998 fixed the appeal for final argument on 8.12.1998. But the arguments on that day could not be heard as the Court time was over. When the appeal was taken up for hearing on 10.12.1998, learned counsel for the parties prayed time for addressing the argument which was allowed by the First Appellate Court and the appeal was listed for hearing final argument on 31.12.1998. But the arguments on that day could not be heard as the Court time was over. When the appeal was taken up for hearing on 10.12.1998, learned counsel for the parties prayed time for addressing the argument which was allowed by the First Appellate Court and the appeal was listed for hearing final argument on 31.12.1998. Thereafter the learned counsel for both the parties did not appear and" notices were ordered to be sent to the parties. On 4.5.1999 Mr. T.R. Chandel, learned counsel for the defendants filed an application under Order 41 Rule 2 C.P.C. read with Section 151 C.P.C for the grant of leave to amend the memo of appeal. The said application was allowed by the First Appellate Court on 1.7.1999. The appeal remained pending for a long time due to one or other reason and it was only on 8.9.2000 when the appeal could be heard by the learned First Appellate Court and thereafter it was finally dismissed on 15.9.2000. The defendants had sufficient time to lodge the objection, if any, against the report of the learned trial court on issue No. 6 A. It is no doubt true that the First Appellate Court fixed no time to present the memorandum of objection to the finding recorded by the trial court on additional issue No. 6 A as envisaged under Order 41 Rule 26 C.P.C. But on plain reading of the said provision it is clear that it was not mandatory or obligatory on the part of the First Appellate Court to fix time for the defendants to present the memorandum of objections to the finding of the learned trial court as it was within the knowledge of the defendants that finding on additional issue No. 6A was recorded by the learned trial court against them and they could have presented the memorandum of objection against such finding if they seriously wanted to challenge the said finding. The defendants in their application filed under Order 41 Rule 2 C.P.C. for leave to amend the memorandum of leave to appeal has challenged the finding of the learned trial Court on additional issue No. A claiming therein that the suit was not properly valued by the plaintiff for the purposes of Court fee and jurisdiction and that the value of the land in dispute was more than Rs. 2 00,000/-. 2 00,000/-. The First Appellate Court has allowed the said application on 1.7.1999. The defendants filed the amended memo of appeal. In which the challenge to the finding of the teamed trail court on additional issue No. 6A has been made. The learned First Appellate Court has dealt with the contention of the teamed counsel for the parties on additional issue No. 6A stating mat the learned counsel for the parties on additional issue No. 6A stating that the teamed counsel for the parties had not agitated the decision of the lower court on the said issue. However, on the baste of the oral evidence of defendant No.1 and documentary evidence (Bets, PW-1A and PW4/B) and copy of the order of the revenue officer dated 25.2.1987, it has been concluded that the apple trees were planted by defendant No.1 in the year 1988 before filing of the suit by the plaintiff and the valuation of the land in dispute for the purposes of court fee and jurisdiction was to be assessed at the time of filing of the suit on the basis of the land revenue. Therefore, the contention of the learned Senior Advocate for the defendants that no opportunity was given to the defendants that no opportunity was given to the defendants by the learned First Appellate Court as provided under Order 41 Rule 26 C.P.C. does not find acceptance. The ratio of the decision in Suraj Balr Vs. Dan Bahadur Singh and another Indian Cases Volume XXVI Page 728 relied upon by the learned senior Advocate for the defendants will not apply in the facts and circumstances of the present case. In that case, it was held that the omission of an Appellate Court to fix a time, as required by Order XLI, Rule 26, Civil Procedure Code, within which either party may present a memorandum of objections to findings of the lower Court, is a mere technical irregularity and may be ignored if it does not in any way prejudice the party complaining of the same. Since in the present case the defendants have been heard by the learned First Appellate Court on the objection raised against the finding recorded by the learned trial Court on additional issue No. 6A, the defendants now cannot be permitted to contend that hey have not been given opportunity by the First Appellate Court. Since in the present case the defendants have been heard by the learned First Appellate Court on the objection raised against the finding recorded by the learned trial Court on additional issue No. 6A, the defendants now cannot be permitted to contend that hey have not been given opportunity by the First Appellate Court. The decision rendered try a Division Bench of the Punjab and Haryana High Court in Sardara Singh Vs. Mst. Lila Wati and others 1970 P.L.J. 463 cited by the learned senior counsel for the defendants in no way helps the defendants in this case. In that case it is held that when the last court of fact records a finding which is either based on no evidence or is based on misreading of evidence, or is arrived at without considering the entire evidence on the record of the case, such a decision cannot be held to be a proper finding of fact and as such it is open to High Court to interfere in the finding of that type even in exercise of its second appellate jurisdiction. 14. For the purpose of court fee, the plaintiff has valued the suit under Section 7 (iv) (c) of the H.P. Court Fee Act, 1968 (For Short Court Fee Act1). Both the Courts below on scrutiny of the evidence on record have found that at the time of institution of the suit, there was not orchard on the land in dispute. Defendant, No.1 while appearing as DW-1 has admitted and stated that the apple trees was planted by him over the land in dispute during the pendency of the suit. The oral testimony of DW-1 stands corroborated from the copy of application (Ext. PW-4/A), copy of the reply filed to the application (Ext PW-4/B) and copy of order of revenue officer dated 25.2.1987 to prove that the apple trees were planted on the land in dispute in the year 1988 and not prior thereto. Seeking decree for possession of the agriculture land, the valuation for the purposes of jurisdiction and Court fee is° required to be assessed on the basis of the land revenue payable of the land. The plaintiff, therefore, had valued the suit for the purposes of Court fee and jurisdiction on the basis of the land revenue payable of the and in dispute. The plaintiff, therefore, had valued the suit for the purposes of Court fee and jurisdiction on the basis of the land revenue payable of the and in dispute. Therefore, both the courts below have rightly held that the suit of the plaintiff is covered by Section 7(iv) (c) of the Court Fee Act The suit of the plaintiff in the alternative for possession of the land in dispute was not for an orchard land at the time of filing of the suit and, therefore the suit was not to be valued for the purposes of court fee and jurisdiction at the time of market value of the orchard land. 15. In Bhagwat Parshad Vs. Mukat Lal and others I.LR. (Himachal Series) (1985), Page 39, the teamed Single Judge of this Court held that once it was found that the suit was for declaration with consequential relief, the court-fee has to be paid as prescribed under Section 7 (iv) (c) read with the proviso at the end and paragraph (v) of Section 7 of the said Act The result was that the plaintiff had to pay court-fee on the basis of the market value of the property in dispute. As observed herein-above, in the present case, the land in dispute at the time of institution of the suit of the plaintiff was not an orchard land, and therefore, the plaintiff had rightly valued the suit for the purposes of court-fee and jurisdiction. In Kanwar Partap Singh Vs. Minakshi Devi and others 1989 (i) Sim. L.C. 107, the learned Judge of this Court held that in suits for a declaratory decree and consequential relief in regard to a house, the court-fee has to be paid on the marked value of the house under Section 7(iv) (c),(v) proviso II of HP. Court Fees Act, 1968. In the present case no help can be derived by the defendants to the proposition of law settled in the said judgment Thus, substantial questions No. 1 and 2 are answered in favour of the plaintiff and against the defendants. SUBSTANTIAL QUESTION No.3: 16. The defendants have relied upon the judgments of the learned Sub Judge, 1st Class, Theog in Case No. 71/1 of 1985 decided on 30.11.1987 to contend that the suit for possession of two rooms and a Kitchen two storeyed house standing on Khasra No.21/1. SUBSTANTIAL QUESTION No.3: 16. The defendants have relied upon the judgments of the learned Sub Judge, 1st Class, Theog in Case No. 71/1 of 1985 decided on 30.11.1987 to contend that the suit for possession of two rooms and a Kitchen two storeyed house standing on Khasra No.21/1. Comprised in Khata/Khatauni No. 2/2 min was filed by original owner Hari Singh against the present defendants. The said suit was dismissed by the Court holding that the defendants had proved their possession over the property involved in the said suit for the last more than 12 years continuously. The suit property in dispute in the present case does not include the house property existing on Khasra No.22/A which was the subject matter of the earlier suit. On perusal of copies of jamabandies for the year 1978-79 (Ext. PB). 1983-84 (Ext. PC), for the year 1988-89 (Ext. DY) and copies of Khasra Girdawari w.e.f. 26.2.1980 onwards Exts. PA.DX and DY/1 would clearly show that prior to 31.10.1981, Hari Singh was recorded as sole owner in exclusive possession of the suit land and thereafter he had been recorded as sole owner of the land in dispute till 21.7.1985 when mutation Ext. PX came to be attested by the revenue official in favour of the plaintiff on the basis of the registered sale deed Ext. PW/A dated 20.7.1983 whereas the defendants are recorded in possession of the land in dispute since 31.10.1981. The document also shows that the defendants are recorded in possession of the land in dispute neither as owners nor as tenants. The claim of the defendants was that they are in possession of the land in dispute on the basis of oral gift made by Hari Singh in their favour The learned First Appellate Court in paragraph-13 of the judgment has recorded that the defendants have led no evidence to prove oral gift in their favour and no such type or oral gift is acceptable to the law of land and when the learned counsel for the defendants was confronted with the said situation he was frank enough to accept that neither the oral gift is permissible nor any evidence is available on record to support the said contention of the defendants. Both the courts below have appreciated and considered the oral and documentary evidence on record and concluded that the entries of the defendants on the record of rights were recorded behind the back of the original owner Hari Singh by defendants Nank Chand in connivance with the revenue officials. The contention of the learned senior Advocate appearing on behalf of the defendants that the defendants have acquired occupancy rights of the land in dispute under Section 3 of the HP. Tenancy and Land Reforms Act cannot be accepted as the said pleas was not raised by the defendants before the courts below. This substantial question is answered against the defendants. SUBSTANTIAL QUESTION NO: 4. 17. The defendants contended that the findings of both the courts below upholding the validity of the gift (Ext. PW-1/A) dated 27.8.1983 executed by Hari Singh in favour of the plaintiff qua the land in dispute are erroneous, perverse and illegal as the possession of the land in dispute was not delivered by the donor to the done at the time of execution of the gift deed. Both the courts below have found that the gift deed (Ext.PW-1/A) was made by Hari Singh in favour of the plaintiff on July 2, 1983 which was registered on the same day by the Registrar, Shimla. In the gift deed a recital was made that the possession of the land in dispute was handed over to the plaintiff. In her testimony the plaintiff while appearing as PW-1 has clearly testified that Ext.PW-1/A was executed by her father PW-3 Hari Singh in her favour and the same was got registered. PW-3 has corroborated her testimony. The gift deed was duly proved by PWs.1,4 and PW.2 Bishen Chand one of the attesting witness. The execution and attestation of the gift deed has not been challenged by the defendants. They have only challenged the factum of delivery of possession which was not found acceptable by both courts below. The plaintiff has clearly pleaded in the plaint that the defendants had taken the possession of the land in the dispute in the year 1981. PW-3 has also admitted the possession the defendants of the land in dispute for the 6-7 years, but he has categorically stated that the defendants took forcible possession of the land in dispute. In the face of the registered gift deed (Ext. PW-3 has also admitted the possession the defendants of the land in dispute for the 6-7 years, but he has categorically stated that the defendants took forcible possession of the land in dispute. In the face of the registered gift deed (Ext. PW-1/A), the claim of the defendants that the land in dispute had been orally gifted to them by Hari Singh as defendant No.1 was kept as Ghar Jawain whereas defendant No. 2 was his daughter and they had been coming in possession of the land in dispute for the last 17-18 years was not found acceptable by both the courts below on the basis of the oral and documentary evidence brought on record. The Courts below have found that the plaintiff has proved the delivery of possession of the land in dispute at the time of execution of the gift deed by Hari Singh in her favour. The defendants had forcibly taken the possession from the plaintiff. In the facts and circumstances of the case, the contention the learned senior Advocate that the gift was invalid for non delivery of the possession of the land in dispute cannot be accepted. The finding recorded by the Courts below holding the gift to be valid is finding of fact depending upon the appreciation of the oral and documentary evidence on record, this court is not inclined to interfere with the fact finding in exercise of power and jurisdiction under Section 100 C.P.C. Thus, substantial question No.4 is answered against the defendants. SUBSTANTIAL QUESTION No.5: 18. The defendants have contended that they have established on record that they were in possession of the land in dispute prior to 1981 on the basis of oral gift made by Hari Singh in their favour and their possession has matured to ownership by way of adverse possession. In support of this contention, the learned senior Advocate has relied upon copy of Khasra Girdwari (Ext PX) of the year 1978-79 in which the defendants are recorded in possession of the land in dispute and Hari Singh was recorded in owner thereof. Both the Courts below have concluded that the defendants have failed to prove that their possession of the land in dispute was continuous, uninterrupted, open and hostile to the knowledge of the true owner. Both the Courts below have concluded that the defendants have failed to prove that their possession of the land in dispute was continuous, uninterrupted, open and hostile to the knowledge of the true owner. In the record of rights from 1971 to 1981 the suit land was shown in the owner ship and possession of Hari Singh. The defendants have not led any cogent and satisfactory evidence to prove that their possession over the land in dispute was matured to ownership by way of adverse possession. On the basis of the evidence on record, both the courts below have found that the defendants forcibly took the possession of the land in dispute in Kharif 1981 taking undue advantage of physical weakness and old age of PW Hari Singh father of the plaintiff. The finding recorded by the courts below and conclusion arrived at on this question is finding or fact which is not permissible to be interfered with in this second appeal. Both the Courts below have recorded the findings on the basis of legal evidence on record and the said findings do not suffer from any legal infirmity or perversity, this court shall not interfere on the well reasoned judgments of the Courts below in second appeal. Both the courts below have taken a particular view with regard to the evidence adduced before it The Conclusion which was arrived at was more than a plausible one. Under the circumstances, this court has no jurisdiction to Interfere with the concurrent finding of fact in exercise of jurisdiction under Section 100 C.P.C. This question is also answered against the defendants. 19. No other point was urged by the learned counsel for the parties. 20. For the aforesaid reasons, there is no merit in this appeal and it is accordingly dismissed. The parties are left to bear their own costs. Stay order stands vacated.