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2014 DIGILAW 1200 (HP)

Giano Devi v. Bihari Lal

2014-09-05

MANSOOR AHMAD MIR

body2014
JUDGMENT : - Mansoor Ahmad Mir, Chief Justice By the medium of this Regular Second Appeal, the appellant/plaintiff has invoked the jurisdiction of this Court as per the mandate of Section 100 of the Code of Civil Procedure (for short, CPC) and has questioned the judgment, dated 19th April, 2000, passed by the learned District Judge, Sirmaur at Nahan, in Civil Appeal No.50-CA/13 of 1999, titled Giano Devi vs. Bihari Lal and others, read with the judgment, dated 2nd August, 1999, passed by Senior Sub Judge, Sirmaur at Nahan, on the grounds taken in the memo of appeal. 2. The appeal came up for consideration before this Court on 19th July, 2000 and the same was admitted, of the paper book. The file remained on the docket of this Court till 8th August, 2014 and after examining the file, hearing the learned counsel for the parties, the following substantial questions of law were framed on the said date: 1. Whether the impugned judgments are perverse? 2. Whether the presumption drawn by the Courts below in terms of Section 90 of the Evidence Act is not legally tenable? 3. Whether the release/relinquishment deed is valid in terms of the provisions of the H.P. Land Records Manual? 4. Whether the suit property can be relinquished/released in terms of the release/relinquishment deed. 5. Whether the Tamliqnama (Ext.D-3), dated 31.1.1966, and the affidavit (Ext.D-4), were the outcome of forgery, fabrication and manipulation? 3. I have heard the learned counsel for the parties and have gone through the record. Brief Facts: 4. Appellant/plaintiff had filed a Civil Suit before the Senior Sub Judge, Sirmaur at Nahan, for grant of decree of declaration on the ground that she is owner in possession of the land and house comprised in Khewat No.52 min, Khatauni No.96 min, Khasra Nos.435, 436 and Sirmaur, H.P. It was prayed that the revenue entries in the name of the defendants/respondents be declared void, illegal and inoperative to the rights of the plaintiff. The plaintiff had also prayed, in the alternative, that she had become owner by way of adverse possession and all the rights, title and interest of the defendants stood extinguished, on the grounds taken in the memo of plaint. 5. The defendants (respondents herein) resisted the plaint by filing written statement. 6. The plaintiff had also prayed, in the alternative, that she had become owner by way of adverse possession and all the rights, title and interest of the defendants stood extinguished, on the grounds taken in the memo of plaint. 5. The defendants (respondents herein) resisted the plaint by filing written statement. 6. On the pleadings of the parties, the followings issues came to be settled by the trial Court: “(i) Whether the plaintiff is owner in possession of the suit property, as alleged? OPP (ii) Whether the revenue entries depicting the defendants as owners of the suit property are illegal, void and inoperative, as alleged? OPP (iii) If issue No.1 is not proved in affirmative, whether the plaintiff has acquired the title to the suit property by way of adverse possession? OPP (iv) Whether the suit is not within time? OPD (v) Whether the plaintiff has no locus-standi to file the present suit? OPD (vi) Whether the plaintiff is estopped to bring the suit by her own acts and admissions, as alleged? OPD (vii) Whether the suit is bad for non-joinder of necessary parties? OPD (viii) Whether the suit is not maintainable in the present form? OPD (ix) Whether the suit is not properly valued for the purpose of court fees and jurisdiction. OPD (x) Whether the defendants have acquired title to the suit land by way of a gift deed executed by Smt.Leela Devi on 31.01.1966 in their favour qua the suit property? If so, its effect? OPD (xi) Whether the alleged gift deed as referred to in Issue No.10 above executed by Smt.Leela Devi in indisposing state of mind and under undue pressure, misrepresentation and fraud practiced by the defendants on the right, title or interest of the plaintiff, as alleged? OPP (xii) Whether the gift deed dated 31.01.1966 is for consideration and, therefore, is also void and illegal, as alleged? OPP (xiii) If issue No.10 is proved in affirmative, whether the defendants are entitled for the decree of possession? OPD (xiv) Relief." 7. Parties led evidence and the Court of the Senior Sub Judge dismissed the suit vide judgment and decree, dated 2nd August, 1999, constraining the plaintiff to file appeal before the District Judge, which was also dismissed, constraining her to file the second appeal, in hand. 8. OPD (xiv) Relief." 7. Parties led evidence and the Court of the Senior Sub Judge dismissed the suit vide judgment and decree, dated 2nd August, 1999, constraining the plaintiff to file appeal before the District Judge, which was also dismissed, constraining her to file the second appeal, in hand. 8. Plaintiff had sought relief on the grounds that Smt.Leela Devi was the owner of the suit property and the her mother Smt.Leela Devi were continuously residing in the house and were in possession of the landed property till the death of Smt.Leela Devi on 17.1.1988 and after her death, the plaintiff remained in possession. The defendants, on 15th June, 1994, asked the plaintiff to vacate the house while pressing into service the land record. It was pleaded by the plaintiff that the revenue entries were manipulated, illegal, void and have cast a cloud on her rights. Her mother remained bed ridden since 1965 and was totally incapacitated from executing any document. 9. Defendants contested the suit by filing written statement, in which they admitted that Smt.Leela Devi was owner of the suit property. It was denied by the defendants that the plaintiff and her sister Smt.Sarna Devi had succeeded to Smt.Leela Devi, as the said Smt.Leela Devi had transferred the suit property in favour of the predecessor of the defendants by way of documents i.e. Tamliqnama and affidavit, dated 31st January, 1966, and mutation No.19, dated 16th March, 1971, was made in favour of the father of the defendants on the basis of the said registered Tamliqnama, dated 31st January, 1966. The copies of mutation, Tamliqnama and affidavit were execution of the said documents. It was also the case of the defendants that the plaintiff has not come to the Court with clean hands. 10. The trial Court, after examining the evidence, oral as well as documentary, led by the parties, has decided issues No. i, ii, xi and xiii against the plaintiff and issues No.x and xiii in favour of the defendants. The trial Court held that admittedly the mother of the plaintiff, namely, Leela Devi was owner in possession of the suit property, who died on 17th January, 1988. 11. The trial Court held that admittedly the mother of the plaintiff, namely, Leela Devi was owner in possession of the suit property, who died on 17th January, 1988. 11. It was further observed by the trial Court that the defendants examined one Sham Sunder as DW-1 in order to prove the documents Tamliqnama Ext.D-3 and affidavit Ext.D-4, since DW-1 Sham Sunder was the son of deceased Amar Nath, who was a Petition Writer and had scribed the said documents Exts.D-3 and D-4. DW-1 Sham Sunder, being the son of said Amar Nath, admitted the signature and hand writing of his father Amar Nath on these documents. 12. After making discussion of the revenue entries and of the said documents i.e. Exts.D-3 & D-4, and oral as well as documentary evidence, the trial Court held that the plaintiff had failed to prove her case and the Ext.D-3, which is registered one and duly written on a stamp paper. Further, the trial Court also held that the said documents (Exts.D-3 & D-4) are more than 30 years old and, therefore, has drawn presumption in terms of Section 90 of the Indian Evidence Act. 13. The trial Court also held that since the defendants have proved, by leading cogent evidence, the execution of documents Tamliqnama Ext.D-3 and affidavit Ext.D-4, therefore, they became owners of the suit property and that the possession of the plaintiff over the suit property was illegal. The counter claim set up by the defendants was decreed in their favour. It is apt to reproduce paragraph 16 of the judgment of the trial Court hereunder: “The cumulative effect of the aforesaid discussions is that the plaintiff has failed to establish that she is owner of the suit property and that the revenue entries showing contrary position are illegal, null and void. On the other hand, the defendants have established by leading cogent and credible evidence that through registered document Ex.D-3 (transfer deed/tamleeknama) the suit property was transferred by deceased Smt.Leela Devi in favour of Sh.Gokal Chand, the predecessor-in-interest of the defendants, and consequently on correctly mutated in favour of deceased Gokal Chand who consequently, became the owner of the same. Through document Ex.D-4 dated 31.1.1966 the suit house was given to Smt.Leela Devi for her shelter during her life time and after her death the defendants are definitely entitled to get the possession of the suit property. Through document Ex.D-4 dated 31.1.1966 the suit house was given to Smt.Leela Devi for her shelter during her life time and after her death the defendants are definitely entitled to get the possession of the suit property. I, accordingly, decide issue No.1, 2, 11 and 12 against the plaintiff and Issue No.10 and 13 in favour of the defendants.” 14. Plaintiff had also taken the plea of adverse possession, in the alternative. The trial Court has held that the plaintiff has not led any evidence to prove that she has acquired the title/ownership of the suit property by way of adverse possession. 15. The Appellate Court after examining the pleadings and evidence led by the parties held that the trial Court has rightly determined all the issues and dismissed the appeal filed by the plaintiff. 16. I have examined the judgments passed by the learned trial Court as well as by the learned Appellate Court. Admittedly, the document i.e. Tamliqnama Ext.D-3 and affidavit Ext.D-4 were executed on 31st January, 1966 and the mutation Ext.D-5 was also attested in favour of the defendants on 16.3.1971. Therefore, the documents Exts.D-3and D-4 (Tamliqnama and affidavit) were more than 30 Court i.e. on 22.06.1998. Therefore, both the courts below have rightly drawn the presumption in terms of Section 90 of the Indian Evidence Act. 17. On the contrary, the plaintiff has failed to prove that the documents Exts.D-3 and D-4 were not valid in terms of Himachal Pradesh Land Records Manual. The mutation Ext.D-5 was attested in the year 1971, which was never questioned by the original owner Smt.Leela Devi, how can it lie in the mouth of the plaintiff that the documents Exts.D-3 and D-4 are bad in the eyes of law or the mutation was wrongly attested in favour of the defendants. 18. The plaintiff has failed to prove that Tamliqnama Ext.D-3 and affidavit Ext.D-4 were forged or fabricated. There is no iota of evidence on the record which could show that the said documents were not executed by Smt.Leela Devi or were executed under influence. Contrary to it, the defendants have been able to prove by leading cogent and credible evidence that the said documents are valid and were prepared by the scribe on judicial paper and the Tamliqnama Ext.D-3 was registered before the Sub Registrar. Contrary to it, the defendants have been able to prove by leading cogent and credible evidence that the said documents are valid and were prepared by the scribe on judicial paper and the Tamliqnama Ext.D-3 was registered before the Sub Registrar. DW-1 Sham Sunder, being the son of the scribe Amar Nath, has identified the signatures contained in the plaint and failed to discharge the onus. 19. The suit, on the face of it, is time barred, which came to be filed in the year 1994 i.e. after 28 years of the execution of the documents Exts.D-3 & D-4, and after about 23 years of the attestation of mutation Ext.D-5, in the year 1971. At the best, the suit was to be filed within the time frame as per the mandate of law. Thus, both the Courts below have rightly held that the suit was time barred. 20. It is clear from the above discussion that the findings recorded by the trial Court and by the Appellate Court are based on correct appreciation of facts and the evidence, oral as well as documentary, led by the parties. Both the judgments are legal one, cannot be said to be perverse in any way. 21. The concurrent findings of fact cannot be disturbed unless it is shown that the same are perverse. 22. The plaintiff has not sought consequential relief, which was available to her at the time of filing of the suit. Thus, the suit is hit by the mandate of Section 34 of the Specific Relief Act, 1963 (for short, S. Act), which reads as under: “34. Discretion of Court as to declaration of may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.” 23. In view of the above discussion, I am of the considered view that no substantial question of law is involved in the present appeal. 24. Having said so, the appeal merits to be dismissed and the same is dismissed accordingly.