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2014 DIGILAW 1890 (HP)

Kunj Lal v. Kekh Ram

2014-12-11

RAJIV SHARMA

body2014
JUDGMENT : Rajiv Sharma, J. This regular second appeal is directed against the judgment and decree of the learned District Judge, Kullu, H.P. dated 9.8.2001, passed in Civil Appeal No. 80 of 2000. 2. Key facts, necessary for the adjudication of this regular second appeal are that the appellants-plaintiffs (hereinafter referred to as the plaintiffs, for the convenience sake), have instituted a suit for declaration with consequential relief of injunction and in the alternative suit for possession against the respondents-defendants (hereinafter referred to as the defendants) or their predecessor in interest. According to the plaintiffs, their predecessor-in-interest, namely Sh. Bhagat Ram was owner-in-possession of land comprised in Kh. Nos. 701 and 702 as per jamabandi for the year 1960-61 and 1/3rd share of land comprised in Khata Khatauni No. 207/310, Kh. No. 39, specifically described in jamabandi for the year 1966-67 and predecessor-in-interest of the defendants No. 3 (a) to 3 (f) of Jeet Ram, as per the array of parties given in original suit. Since the deceased defendant Jeet Ram was owner-in-possession of Kh. No. 260 and 695 and of ½ share of land comprised in Kh. No. 661, as per jamabandi for the year 1960-61, Sh. Bhagat Ram predecessor-in-interest of the plaintiffs exchanged 4/5th share of his land comprised in Kh. No. 701 and land comprised in Kh. No. 702 with the ½ share of land comprised in Kh. No. 661 and Kh. No. 695 belonging to Jeet Ram vide mutations No. 539 dated 29.9.1965 and mutation No. 548 dated 12.8.1966. Sh. Jeet Ram has also exchanged his land comprised in Kh. No. 260 with the 11/14 share of land comprised in Kh. No. 18 belonging to defendant No. 13 Dola Ram vide mutation No. 837 dated 26.9.1965 and Dola Ram in turn exchanged the land comprised in Kh. No. 260 with 1/3rd share of land comprised in Kh. No. 39 belonging to Bhagat Ram vide mutation No. 538 dated 26.9.1965. Defendant No. 13 Dola Ram subsequently transferred Kh. No. 39 in favour of defendant No. 14 Ram Dayal and defendant No. 15, Thakar Dass. Jeet Ram further transferred Kh. Nos. 701 and 702 in favour of defendants No. 8 to 13, namely, Nawang Chhering, Dorje Angroop, Tashi Angroop, Tashi Tandup, Padma Dorje and Dole Ram. Bhagat Ram raised an orchard on the suit land. No. 39 in favour of defendant No. 14 Ram Dayal and defendant No. 15, Thakar Dass. Jeet Ram further transferred Kh. Nos. 701 and 702 in favour of defendants No. 8 to 13, namely, Nawang Chhering, Dorje Angroop, Tashi Angroop, Tashi Tandup, Padma Dorje and Dole Ram. Bhagat Ram raised an orchard on the suit land. They came to know for the first time in the year 1997 that Thakri Devi widow of Parmanand was owner-in-possession of ½ share of Kh. Nos. 260, 695 and 661 along with some other Khasra numbers and that she had gifted this land in favour of Sh. Jeet Ram. However, she subsequently filed a suit bearing No. 250 of 1964 against defendant Jeet Ram. The matter was compromised on 11.5.1965. The compromise decree was drawn. According to the compromise-decree, Jeet Ram would pay a monthly maintenance amount of Rs. 50/- to her along with the arrears of Rs. 200/- and in case of default Thakri Devi was empowered to get the possession of the gifted land back by way of execution. Thereafter, Thakri Devi hatched a conspiracy with Jeet Ram by concealing the material facts that the suit land had already been transferred by way of exchange in favour of Bhagat Ram. Smt. Thakri Devi filed an execution petition in the Court without impleading the predecessor-in-interest of the plaintiffs as a party. The warrant of possession was issued vide order dated 6.7.1971. Rapat No. 183 dated 7.12.1971 was prepared by Halqua Patwari. Mutation No. 782 was attested. After the death of Smt. Thakri Devi, defendants No. 1 & 2 Sh. Khimatu and Shamsher Singh procured mutation No. 977 in respect of the suit land in their favour. The plaintiffs, have thus claimed decree of declaration, to the effect that they were owners-in-possession of the suit land and defendants No. 1 & 2 be restrained from interfering in their possession over the suit land comprised in Kh. Nos. 701 and 702 and 1/3 share in Kh. No. 39. 3. The suit was contested by defendants No. 1 & 2, namely Sh. Khimatu and Shamsher Singh, defendants No. 8 to 13 and defendants No. 14 & 15. A joint written statement was filed by defendants No. 1 & 2. It is admitted that defendant No. 3, namely, Jeet Ram had exchanged the suit land with the land of Bhagat Ram, predecessor-in-interest of the plaintiffs. Khimatu and Shamsher Singh, defendants No. 8 to 13 and defendants No. 14 & 15. A joint written statement was filed by defendants No. 1 & 2. It is admitted that defendant No. 3, namely, Jeet Ram had exchanged the suit land with the land of Bhagat Ram, predecessor-in-interest of the plaintiffs. It is asserted that defendant No. 3 had no right to exchange the khasra numbers in dispute with Bhagat Ram and defendant No. 13 Dola Ram in view of the compromise dated 11.5.1965 in suit bearing No. 250/1964. Smt. Thakri Devi has executed the =Will' dated 4.10.1978 in favour of defendant No. 1 Khimatu and Fateh Chand, the father of defendant No. 2. According to them, the possession of the suit land was delivered to Thakri Devi in execution petition by way of warrant of possession. 4. Jeet Ram, in his written statement, has admitted that he had exchanged the suit land with Bhagat Ram and defendant No. 13 Dola Ram. However, he has pleaded that he was owner of Kh. No. 260 only to the extent of ½ share and he has given only this share in exchange to Dola Ram who in lieu thereof had given to him 11/14 share of Kh. No. 18. He has admitted about the compromise decree. He has denied that he had hatched conspiracy with Smt. Thakri Devi. 5. Defendants No. 8 to 13 have filed the joint written statement. They have denied for want of knowledge the facts relating to the exchange of land and passing of compromise decree and thereafter execution petition. According to them, defendant No. 8 Nawang Cherring and Nawang Thele, predecessor-in-interest of defendants No. 9 to 12 had purchased 4/5 share of Kh. No. 701 and land measuring 1-3-0 bighas comprised in Kh. No. 702 from Hira Lal son of Sh. Lal Chand. They have purchased the land bonafide. 6. The replication was filed by the plaintiffs. The learned Sub Judge Ist Class, Manali, framed the issues and additional issue was framed on 19.5.2000. The learned Sub Judge Ist Class, Manali, decreed the suit on 29.5.2000 by declaring the plaintiffs to be owners-in-possession of suit land and defendants No. 1 & 2 were perpetually restrained from interfering in any manner over the suit land. The LRs of defendant No. 1 and defendant No. 2 Shamsher Singh filed an appeal before the learned District Judge, Kullu. The LRs of defendant No. 1 and defendant No. 2 Shamsher Singh filed an appeal before the learned District Judge, Kullu. The learned District Judge, Kullu, allowed the appeal and set aside the impugned judgment and decree vide judgment dated 9.8.2001. Hence, this regular second appeal. 7. This regular second appeal was admitted on the following substantial questions of law on 28.8.2001: ?1. Whether oral and documentary evidence on record especially the statements of PW-1 Kunj Lal plaintiff, PW-2 Cherring Dorje, Exhibits, P-9 to P-15 mutations, Exhibits P-16 jamabandi for the year 1960-61, Ext. D-1 compromise decree, Ext. D-2 compliance report, Ex. D-7 and Ex. D-8 mutations, Ex. D-15 Rapat Rojnamcha, Ex. PA-1 mutation, DW-2 statement of Bhoop Ram, Chowkidar have not been considered in their proper perspective by the learned first appellate court? 2. Whether the principles of Section 41 and Section 52 of the Transfer of Property Act can be applied to a bonafide transaction, which was made during the period when there was no pendency of any suit and after due and diligent investigation regarding the title of the person making the transfer? 3. Whether Section 119 of the Transfer of Property Act would be applicable where one of the party to the transaction is subsequently deprived of property transferred and there is non receipt of properties stipulated to be received and the said property is entitled to the option for return of the property from the other party, legal representative or the transferee is also entitled to damages for the deprivation of that property? 4. Whether in a gift where the dispositive words are clear and an absolute estate is given and mutation entered thereto regarding acceptance and delivery of possession, and where allegedly the purpose of the gift is allegedly for maintenance of the donor, it does not follow that a complete estate is given and there is a rider in said transfer of gift?? 8. Mr. Sanjeev Kuthiala, Advocate, on the basis of the substantial questions of law framed, has vehemently argued that the first Appellate Court has not correctly appreciated the documentary evidence placed on record. He has supported the judgment and decree passed by the trial Court. On the other hand, Mr. Bhupinder Gupta, Sr. Advocate, has supported the judgment and decree passed by the learned District Judge, Kullu dated 9.8.2001. 9. He has supported the judgment and decree passed by the trial Court. On the other hand, Mr. Bhupinder Gupta, Sr. Advocate, has supported the judgment and decree passed by the learned District Judge, Kullu dated 9.8.2001. 9. I have heard the learned Advocates for the parties and gone through the records of the case carefully. 10. The dispute, in a nut shell, is that the predecessor-in-interest of the plaintiffs Sh. Bhagat Ram, exchanged 4/5 share of his land comprised in Kh. No. 701 and 702 with ½ share of land comprised in Kh. Nos. 661 and 695 belonging to Jeet Ram. The mutations No. 539 and 548 dated 29.9.1965 and 12.8.1966, respectively, were also attested. Sh. Jeet Ram has also exchanged his land comprised in Kh. No. 260 with the 11/14 share of land comprised in Kh. No. 18 belonging to defendant No. 13 Dola Ram vide mutation No. 837 dated 26.9.1965 and Dola Ram in turn exchanged the land comprised in Kh. No. 260 with 1/3rd share of land comprised in Kh. No. 39 belonging to Bhagat Ram vide mutation No. 538 dated 26.9.1965. Defendant No. 8 Nawang Chhering and Nawang Thele, predecessor-in-interest of defendants No. 9 to 12 had purchased 4/5 share of Kh. No. 701 and land measuring 1-3-0 bighas comprised in Kh. No. 702 from Hira Lal son of Sh. Lal Chand. Smt. Thakri Devi has gifted Kh. Nos. 260, 695 and 661 to Sh. Jeet Ram. She filed Civil Suit bearing No. 250/64 against Jeet Ram. It was compromised on 11.5.1965. Thereafter, she filed execution petition and mutation was attested on 7.12.1971. 11. PW-1 Kunj Lal deposed that Sh. Jeet Ram was owner of Kh. Nos. 260, 695 and 661. His father owned Kh. Nos. 701 and 702. Kh. No. 260 was also owned by Sh. Jeet Ram. He has exchanged this Kh. No. with Sh. Dole Ram. Sh. Dole Ram has exchanged this Kh. No. with Kh. No. 39. Jeet Ram was given Kh. No. 695 for exchange of Kh. No. 702 and Kh. No. 661was exchanged with Kh. No. 701. Sh. Jeet Ram was owner of Kh. Nos. 260, 695 and 661. With the exchange thereafter, they have become owners of the land. An orchard was raised on Kh. No. 695. The defendants have started interfering in their possession since 1997. No. 695 for exchange of Kh. No. 702 and Kh. No. 661was exchanged with Kh. No. 701. Sh. Jeet Ram was owner of Kh. Nos. 260, 695 and 661. With the exchange thereafter, they have become owners of the land. An orchard was raised on Kh. No. 695. The defendants have started interfering in their possession since 1997. They came to know about the gift executed by Thakri Devi in favour of Jeet Ram. They have never left the possession. A false report was prepared by the revenue department. The mutation was wrongly attested in favour of Thakri Devi. In his cross-examination, he deposed that his father died in the year 1982. The exchange was made in the year 1965. Jeet Ram was owner of ½ share of Kh. No. 661 and absolute owner of Kh. Nos. 695 & 260. 12. PW-2 Cherring Dorje deposed that he knew the parties. He had seen the disputed land. Bhagat Ram has raised an orchard 30-35 years back. In his cross-examination, he could not narrate the khasra number. He was not aware that defendants No. 8 to 13 have purchased land from Hira Lal. 13. DW-1 Shamsher Singh deposed that the disputed land was owned by Thakri Devi. The land was gifted to Jeetu. Thakri Devi has instituted suit in the year 1964. The suit was compromised. Sh. Jeetu has to pay a sum of Rs. 200/- per month to Thakri Devi and in case of breach, Thakri Devi has right to get the possession of the land back. Thakri Devi was in possession of the suit land. She has executed the =Will' in the year 1978 in favour of Sh. Fateh Chand and Khimatu, vide mark A. It was scribed by Chuhru Ram. Sh. Mukand Lal and Dholu Ram were the marginal witnesses. Sh. Chuhru Ram has read the contents of the =Will' in front of the marginal witnesses. She has put her signatures in front of the witnesses. Thereafter, the marginal witnesses have put their signatures. The possession was taken over through Kanungo and Patwari. The legal heirs of Jeet Ram were in possession of the suit land. In his cross-examination, he deposed that Bhagat Ram knew that Thakri Devi was in possession of the suit property at the time of exchange. 14. DW-2 Bhoop Ram deposed that he was Chowkidar. He has seen the suit land. The legal heirs of Jeet Ram were in possession of the suit land. In his cross-examination, he deposed that Bhagat Ram knew that Thakri Devi was in possession of the suit property at the time of exchange. 14. DW-2 Bhoop Ram deposed that he was Chowkidar. He has seen the suit land. The land was in possession of Thakri Devi. After her death the land came to the possession of Fateh Chand and Khimatu. Thereafter, it came to the possession of Shamsher Singh. The Patwari and Kanungo had come on the spot to give possession to Thakri Devi. 15. PW-3 Sh. Chuhru Ram deposed that he was working as Petition Writer since 1968. Ext. DW-3/A was scribed by him at the instance of Thakri Devi. It was scribed on 4.10.1978. Smt. Thakri Devi has put her signatures in the presence of marginal witnesses Mukand Lal Upadhyay, Advocate and Dola Ram. Thereafter, the marginal witnesses have also signed the =Will'. The contents of =Will' were read over to Thakri Devi. She after admitting the contents to be true put her thumb impression on the same. She was in her senses. She knew her profit and loss. 16. DW-4 Mukand Lal deposed that =Will' Ext. DW-3/A was scribed by Chuhru Ram at the instance of Thakri Devi. The contents of the =Will' were read over to Thakri Devi. She after admitting the contents of the =Will' to be true, put her thumb impression in his presence and Dola Ram. Thereafter, he and Dola Ram signed the =Will'. She was in her senses. 17. DW-5 Dola Ram deposed that he has taken Kh. No. 39 in the year 1968 from Bhagat Ram by way of exchange and in lieu thereof Kh. No. 54 was taken from Rattan Dass in the year 1970. He has raised parapets on the same. He has spent Rs. 5,00,000/-. He has admitted in his cross-examination that he exchanged Kh. No. 260 and Bhagat Ram has given him Kh. No. 39 in lieu thereof in the year 1965. 18. DW-6 Tashi Angroop deposed that Kh. Nos. 701 & 702 were purchased by their predecessor-in-interest from Sh. Hira Lal. They have improved the property. He was not aware that on Kh. Nos. 260, 695 and 661, defendants No. 1 & 2 have raised an orchard. 19. DW-7 Phunchok deposed that he knew Dola Ram. He was in possession of Kh. DW-6 Tashi Angroop deposed that Kh. Nos. 701 & 702 were purchased by their predecessor-in-interest from Sh. Hira Lal. They have improved the property. He was not aware that on Kh. Nos. 260, 695 and 661, defendants No. 1 & 2 have raised an orchard. 19. DW-7 Phunchok deposed that he knew Dola Ram. He was in possession of Kh. No. 54 since 1970. He has raised an apple orchard over the same. 20. DW-8 Thakur Dass deposed that their father has given Kh. No. 54 to Dola Ram in exchange and in lieu thereof Kh. Nos. 17, 18, 19 and 39 were given to his father. 21. DW-9 Heera Singh deposed that Jeet Ram was his father. His father had exchanged the land with Bhagat Ram. His father has given ½ share of Kh. Nos. 260, 661 and 695 to Bhagat Ram and Bhagat Ram had given in exchange Kh. Nos. 701 & 702. Thakri Devi has executed gift in favour of his father. Thakri Devi has also filed a Civil Suit. Bhagat Ram, father of the plaintiffs' was not aware of this Civil Suit. The possession was also handed over at the time of the exchange. Thakri Devi has filed execution petition. The possession was given to Thakri Devi. He admitted in his cross-examination that after exchange, the plaintiffs were in possession of Kh. Nos. 260, 695 and 661. He also admitted that Jeet Ram was owner of Kh. No. 260. 22. Smt. Thakri Devi has made a gift in favour of Jeet Ram. She filed suit for revocation of the gift. Decree-sheet is Ext. D-1 dated 11.5.1965. According to the decree-sheet, Jeet Ram has undertaken to regularly pay maintenance amount of Rs. 50/- per month to Smt. Thakri Devi and also to pay arrears of maintenance @ Rs. 200/- before 11.5.1965. Thakri Devi could take back the possession in breach of the undertaking given by Sh. Jeet Ram. Sh. Bhagat Ram has exchanged 4/5th share of his land comprised in Kh. No. 701 and whole share in Kh. No. 702 with Jeet Ram who in lieu thereof gave ½ share of land comprised in Kh. No. 661 and land compromised in Kh. No. 695 to Sh. Bhagat Ram. The mutation No. 539 was attested on 26.9.1965 and mutation No. 548 on 12.8.1966. Sh. Jeet Ram has further exchanged his land comprised in Kh. No. 702 with Jeet Ram who in lieu thereof gave ½ share of land comprised in Kh. No. 661 and land compromised in Kh. No. 695 to Sh. Bhagat Ram. The mutation No. 539 was attested on 26.9.1965 and mutation No. 548 on 12.8.1966. Sh. Jeet Ram has further exchanged his land comprised in Kh. No. 260 with the 11/14 share of land comprised in Kh. No. 18 belonging to defendant No. 13 Dola Ram vide mutation No. 837 dated 26.9.1965 and Dola Ram in turn exchanged above mentioned Kh. No. 260 with 1/3rd share of land comprised in Kh. No. 39 belonging to Bhagat Ram vide mutation No. 538 dated 26.9.1965. According to these mutations, Sh. Bhagat Ram was put in possession of the suit land. Civil Suit No. 250 of 1964 was compromised on 11.5.1965. Smt. Thakri Devi, as per Ext. D-3 copy of order dated 16.3.1970 has admitted that Jeet Ram has made payment to her in accordance with the terms of decree upto 11.11.1966. Thus, it can safely be presumed that the decree remained in abeyance till 11.11.1966. The mutations were attested on 29.9.1965, 12.8.1966 and 26.9.1965 before 11.11.1966. 23. It is not disputed that Bhagat Ram has given Kh. Nos. 701, 702 and 39 to Sh. Jeet Ram. There is no contemporaneous material placed on record by the contesting defendants that Bhagat Ram knew about the Civil Suit instituted by Thakri Devi for revocation of the gift and compromise decree dated 11.5.1965. Neither from Ext. D-2, copy of report made by field Kanungo nor from D-15, copy of Rojnamcha, it is clear who was evicted from the suit land in pursuance of the warrant of possession. No tangible material has been placed on record that Thakri Devi was infact physically put into possession of the suit property. PW-1 Kunj Lal has categorically deposed that they were in possession of Kh. No. 260, 695 and 661 and have raised orchard on Kh. No. 695. PW-2 Cheering Dorje has also deposed that Bhagat Ram has raided an orchard on one portion of the land. Sh. Bhagat Ram was owner-in-possession of the suit land. Thereafter, the plaintiffs came in possession of the suit land. DW-1 Shamsher Singh has admitted in his cross-examination that he did not know whether anybody has dispossessed Bhagat Ram from the land which he got in exchange. Sh. Bhagat Ram was owner-in-possession of the suit land. Thereafter, the plaintiffs came in possession of the suit land. DW-1 Shamsher Singh has admitted in his cross-examination that he did not know whether anybody has dispossessed Bhagat Ram from the land which he got in exchange. DW-2 Bhoop Ram has categorically admitted in his examination-in-chief that Jeet Ram was never in possession of the suit land. DW-9 Heera Singh has also admitted in his cross-examination that after the exchange, possession of the suit land was delivered and the plaintiffs came in possession of the same. Even according to Ext. P-1 to P-8 jamabandis, plaintiffs were shown in possession of the suit land. Thus, the learned first appellate Court has come to a wrong conclusion that at the time of exchange of the suit land the title of Bhagat Ram was under clog. 24. Smt. Thakri Devi has made gift in favour of Jeet Ram. The compromise decree was passed on 11.5.1965. Thereafter, the land was exchanged and mutations were attested. Thakri Devi, as noticed hereinabove, has admitted that Jeet Ram has paid her maintenance up to 11.11.1966. Sh. Jeet Ram has not adhered to the terms and conditions of the decree only after 11.11.1966. It is also not proved that Thakri Devi was ever put in physical possession of the suit property rather it has come on record that plaintiffs were in possession of the suit land. They could alone be evicted from the suit land. It cannot be said that plaintiffs were bound by the compromise decree dated 11.5.1965. Bhagat Ram, predecessor-in-interest of the plaintiffs has exchanged his own land with the land of Sh. Jeet Ram. Plaintiffs cannot be deprived of the land which their father has exchanged with Sh. Jeet Ram. The exchange has been admitted by the defendants. The learned first appellate Court has not even considered the alternative prayer of the plaintiffs for recovery of the land given in exchange by their father to defendant No. 3 Sh. Jeet Ram only on the ground that there was complexity of the matter. There was hardly any complexity of the matter and plaintiffs could not be forced to initiate fresh proceedings. The first appellate Court has not correctly appreciated the oral as well as documentary evidence placed on record, more particularly, the revenue entries and mutations. Jeet Ram only on the ground that there was complexity of the matter. There was hardly any complexity of the matter and plaintiffs could not be forced to initiate fresh proceedings. The first appellate Court has not correctly appreciated the oral as well as documentary evidence placed on record, more particularly, the revenue entries and mutations. The exchange of land made by the predecessor-in-interest of the plaintiffs with defendant No. 3 Jeet Ram was bonafide. They could not be deprived of their land given in exchange to Sh. Jeet Ram as per the settled law. The substantial questions of law are answered accordingly. 25. Consequently, the regular second appeal is allowed. The judgment and decree passed by the learned first Appellate Court dated 9.8.2001 is set aside. Judgment and decree of the learned Sub Judge Ist Class, Manali, dated 29.5.2000, is affirmed. In view of the above, pending application (s), if any, including CMP No. 11889 of 2014 shall stand disposed of.