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2014 DIGILAW 385 (HP)

Sarindro Devi v. Desh Raj

2014-04-11

TARLOK SINGH CHAUHAN

body2014
JUDGMENT Tarlok Singh Chauhan, Judge. The appellants are the successors-in-interest of the defendant No.1, who have lost in both the Courts below. 2. The plaintiff-respondent filed a suit for declaration to the effect that he along with defendant No.1 was co-owner in equal shares of the house/shop as per the site plan attached and comprised in Khata No.167min, Khatauni No.247, Khasra No.971/963, area measuring 1 kanal 5 marlas, situate in Ti ka Lamblu, Tappa Ugialta, Tehsil and District Hamirpur, H.P. and the mortgage effected by the defendant No.1 in favour of the defendant No.2 regarding the share of the plaintiff on 09.10.1987 was null and void and not binding on the plaintiff. The plaintiff also claimed the relief of permanent prohibitory injunction restraining the defendants from changing the nature of the suit land or alienating the share of the plaintiff in the suit property in dispute or from raising construction in the joint land. It was alleged that the property had been purchased by their father Thakur Dass in the year 1972. In 1979-80 and 1980-81 the old construction standing on the land was demolished and the present construction was raised by the father of the parties. Thakur Dass died on 26.02.1989 and thereafter the defendant No.1 started grabbing the whole property in dispute and mortgaged the same with the defendant No.2 on 09.10.1987 for a consideration of ‘65,000/-. Since the defendant No.1 had no right to mortgage even the share of the plaintiff to defendant No.2, hence a legal notice was served upon the defendant No.2 and since the defendants were not admitting the claim of the plaintiff, therefore, the suit. 3. The defendant No.1 contested the suit by filing written statement wherein preliminary objections regarding valuation and estoppel were raised. On merits, it was contended that the property in dispute was purchased by him alone, though the name of the plaintiff was also entered in the sale deed. He alleged that after demolition of the original structure, a new construction was raised by him alone by spending huge amount and at that time no objection whatsoever was raised by the plaintiff. He denied that any construction was raised by the plaintiff or the father of the plaintiff. Regarding mortgage, it was alleged that since defendant No.1 was the absolute owner in possession of the property in dispute, he had rightly mortgaged the same with the defendant No.2. 4. He denied that any construction was raised by the plaintiff or the father of the plaintiff. Regarding mortgage, it was alleged that since defendant No.1 was the absolute owner in possession of the property in dispute, he had rightly mortgaged the same with the defendant No.2. 4. The defendant No.2 also contested the suit by filing written statement wherein preliminary objections regarding maintainability, non- joinder of necessary parties, estoppel, locus-standi and cause of action were raised. On merits, it was contended that there exists a house of the defendant No.1 over the suit land and the same was mortgaged after conducting a detailed inquiry. Not only this, during the course of inquiry, affidavit dated 15.09.1980 was sworn in by the plaintiff which was taken into consideration. It is, thus, denied that the mortgage of the house had been executed without verifying the facts. The defendant No.1 had mortgaged his house which had been valued as per the assessment to be at ‘1,46,850/- against which the defendant No.1 had raised loan of ‘65,000/- by mortgaging his property. The mortgage was, thus, stated to be legal and valid. 5.The plaintiff filed replication denying the preliminary objections as also the contents of the written statements while, at the same time, he reaffirmed and reiterated the averments as contained in the plaint. 6.On the pleadings of the parties, the learned trial Court on 22.10.1990 framed the following issues:- 1.Whether the plaintiff is entitled to the relief of declaration and permanent prohibitory injunction as alleged? OPP 2.Whether the plaintiff and defendant No.1 are the co-owners in possession of the disputed property, as alleged? OPP 3.Whether the mortgage deed executed by defendant No.1 in favour of defendant No.2 dated 9.10.1987 qua the share of plaintiff is null and void? OPP 4.Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD 5.Whether the suit is not maintainable as alleged? OPD. 6. Whether the plaintiff is estopped from filing the present suit by his act and conduct? OPD 7.Whether the suit is not within time? OPD 8. Whether the suit is barred by the principle of resjudicata, as alleged? OPD 9. Whether the suit is bad for non-joinder of necessary parties? OPD. 10. Whether the plaintiff has got no locus-standi to file the present suit? OPD. 11. Relief. OPD 7.Whether the suit is not within time? OPD 8. Whether the suit is barred by the principle of resjudicata, as alleged? OPD 9. Whether the suit is bad for non-joinder of necessary parties? OPD. 10. Whether the plaintiff has got no locus-standi to file the present suit? OPD. 11. Relief. 7.After recording evidence, the learned trial Court vide his judgment and decree dated 07.12.1994 decreed the suit declaring the plaintiff to be the joint owner in possession of the shops standing on the land in dispute. However, with respect to the shed standing on the land in dispute, it was declared that it was exclusively owned by the successors-in-interest of the defendant. The defendants-appellants preferred an appeal against the judgment and decree while the plaintiff- respondent filed cross objections with respect to the findings regarding the shed. The appeal and cross objections were taken up together for hearing by the learned lower appellate Court, who vide his judgment and decree dated 18.12.2002 dismissed the appeal filed by the defendants-appellants and allowed the cross objections preferred by the plaintiff-respondent. 8. Aggrieved by the judgment and decree passed by the learned lower appellate Court, the defendants/appellants have come up in appeal before this Court. On 22.04.2003, this Court admitted the appeal on the following substantial questions of law:- 1. Whether the findings of the District Judge modifying and reversing the judgment and decree of the trial court in respect of the stall holding the same to be joint of the parties is perverse, based on misreading of oral and documentary evidence and is liable to be set aside? 2. Whether the findings and the inference drawn by the court below that the property was joint of the parties and had been purchased out of the joint funds and constructed jointly are based on inadmissible oral and documentary evidence, particularly affidavit Ex. DW-1, statement of PW-10, PW-11 and PW-12 and the documents Ex. DW-9/A, DW-9/B, DW-9/C, DW-9/E etc.? 3. Whether the mortgaged sale deed DW-2 and coupled with Ex.D-1 and the documents Ex.DW-9/A, DW-9/B, DW-9/C, and DW-9/E have been misconstrued and wrong inferences have been drawn in holding that the property in suit was jointly owned by the parties and the plaintiff was entitled to declaration as claimed? 4. Whether the court below has ignored the material evidence and the admissions of the plaintiff, particularly Ex.D-1 which has vitiated the findings? 4. Whether the court below has ignored the material evidence and the admissions of the plaintiff, particularly Ex.D-1 which has vitiated the findings? 9.Since all the questions are inter-connected and interlinked, I proceed to answer the same by common reasoning. 10.I have heard Shri K.D.Sood, Senior Advocate, assisted by Shri Rajnish K.Lal, Advocate, for the appellants and Shri Sanjeev Kuthiala, Advocate, for respondent No.1. CMP No.228 of 2013. 11.The appellants-applicants had preferred this application under Sections 67, 73 and 101 of the Evidence Act read with Section 151 C.P.C. for comparison of the signatures of the plaintiff-respondent Desh Raj on the affidavit dated 15.09.1980 Ex. D-1 executed by plaintiff-respondent with the signatures of plaintiff-respondent on the sales tax returns dated 20.07.1991 and 18.10.1991, submitted by the plaintiff-respondent. No orders in this application have been passed till date, therefore, the same is considered along with the present appeal. 12.It has been averred that in order to satisfactorily pronounce the judgment and also to prove the facts that the respondent No.1 had signed the affidavit Ex.D-1 and got the same attested, the comparison of the signatures of the respondent No.1 on this affidavit Ex.D-1 and the sales tax returns dated 20.07.1991 and 18.10.1991 are necessary. 13.The respondent No.1 in his reply has contended that the admitted signatures are required to be there on the original and not on the photocopies and, therefore, there is no basis for the appellants- applicants in preferring the present application because the sales tax returns are not original but photocopies of the same. 14.I have considered the application and find that the same has been filed with the sole objective of delaying the outcome of the appeal. The application has been filed to fill-up the lacuna in the case. This Court does not require the documents so as enable it to pronounce the judgment since the judgment can be pronounced in absence of such documents. Even otherwise, the documents are not found to be relevant to decide the real issue in controversy. Above all, the signatures can only be compared from the original document and not the photocopy. Therefore, the application being without any merit is rejected. 15.Now, I proceed to decide the appeal. As per the admitted case of the parties, the suit property has been acquired by way of sale from its previous owner Shri Gian Chand. Above all, the signatures can only be compared from the original document and not the photocopy. Therefore, the application being without any merit is rejected. 15.Now, I proceed to decide the appeal. As per the admitted case of the parties, the suit property has been acquired by way of sale from its previous owner Shri Gian Chand. The sale deed dated 30.08.1971 is Ex.D-2 which reveals that the land in question along with a shop measuring 10 Hath x 10 Hath was sold by its previous owner to the plaintiff and the predecessor-in-interest of the of the appellants for a sum of ‘9,000/-. The sale deed in this case had been produced by the deceased-defendant No.1 himself which was in his custody. 16.The plaintiff in support his case had produced his accounts i.e. ‘Bahi’ Ex.P-1 to P-12 allegedly maintained by the parties in joint account. These were relied upon to contend that the money was spent out of the funds of the joint family. No doubt, there is mention in these documents qua the investment having been shown to be made for arranging construction material and paying labour charges, but the learned Courts below have concurrently found that such entries would hardly have any evidentiary value because it has not at all been proved that these accounts (Bahi) were maintained in the ordinary course of business by the firm M/s Thakur Dass Hem Raj. 17.Similarly, the defendant also placed reliance on the ‘Bahi’ Ex.D-3 to D-8 in support of his claim that he had spent a sum of `90,000/- approximately in raising the construction of the disputed structure. These documents too cannot be believed to be true for the reasons that the same also cannot be said to have been maintained in the ordinary course of business. 18.The learned Courts below further have concurrently found that the construction had been raised out of the joint funds of the plaintiff and defendant No.1 and there was no evidence nor was there any occasion for the defendant to have raised construction exclusively out of his own funds. This is pure finding of fact and cannot be interfered with by this Court in exercise of its jurisdiction under Section 100 of CPC. This is pure finding of fact and cannot be interfered with by this Court in exercise of its jurisdiction under Section 100 of CPC. 19.Shri Sanjeev Kuthiala, learned counsel for respondent No.1 has rightly placed reliance upon the judgment of the Punjab and Haryana High Court in Kunj Lal and others versus Bhagwan Das Jugal Kishore A.I.R. 1953 Punjab 220 to contend that a house must be held to be absolute property of the party who holds the soil on which it is built. For this purpose he has relied upon paragraph-14 of the said judgment which reads as follows:- “14. Finding as I do that Debi Das purchased the site of the house in suit, it follows that Bhagwan Das, grandson of Debi Das, is the owner of the house built on that site. In such cases the rule is that the house must be held to be absolute property of the party who holds the soil on which it is built “ Omne quod solo inaedificatur solo cedit”. In this connection Jurisprudence by Sir John Salmond Tenth Edition page 429 may be seen.” In this case, once the land had been found to be joint then the structure thereupon shall also be deemed to be joint unless there is evidence to the contrary. 20.Shri K.D.Sood, learned Senior Advocate, referred to affidavit of the plaintiff Ex.D-1 to contend that the plaintiff had no connection with the house or the vacant land. Here, again the learned Courts below have again concurrently discarded the evidentiary value of this document and being pure finding of fact this finding cannot be interfered with. 21. The learned counsel for the appellants has then placed reliance upon cash memo Ex.D-3 and Ex.D-4 which only show that construction material had been purchased, but this in no manner proves that it was the defendant No.1 alone, who had purchased the construction material out of his own funds. This is a case which pertains to joint land and until or unless the defendant could prove either relinquishment or ouster, the land and the structure would be deemed to be joint. 22.The revenue entries Ex.P-13 to P-15 clearly depict the land to be joint and even the mutation Ex.P-16 shows that the same was attested and sanctioned in the names of plaintiff and defendant No.1 in equal shares. 22.The revenue entries Ex.P-13 to P-15 clearly depict the land to be joint and even the mutation Ex.P-16 shows that the same was attested and sanctioned in the names of plaintiff and defendant No.1 in equal shares. Thus, it is proved beyond any reasonable doubt and as otherwise rightly concluded by the learned Courts below that the parties are joint owners to the extent of equal shares of the structure existing over the land in dispute. 23.No doubt, the deceased-defendant Hem Raj had filed some application for correction of the revenue entries as is clear from the copy of ‘Badar’ pertaining to the suit land Ex.DW9/B in which the shop situated over the land in dispute was ordered to be recorded in the name of defendant No.1 alone by Assistant Collector IInd Grade, Hamirpur. But this application filed for correction by defendant No.1 has never seen light of the day till date. Therefore, there is no material available on the record to show that the so-called change in the revenue entries was, infact, ordered by the Assistant Collector IInd Grade or could in any manner be termed to be legal and valid. Even if such entry is assumed to be existing, even then the same would be null and void and not binding upon the plaintiff since admittedly no opportunity of being heard was ever afforded to the plaintiff. 24.Accordingly, I hold that the learned Courts below have correctly appreciated the oral and documentary evidence led by the parties and these findings in no manner can be termed to be ‘perverse’. The learned lower appellate Court has correctly appreciated the pleadings as also the evidence led by the parties and rightly modified the judgment and decree passed by the learned trial Court. The substantial questions of law, as framed, are accordingly answered against the appellants. 25.Consequently, there is no merit in the present appeal and the same is accordingly dismissed with costs throughout.