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2014 DIGILAW 654 (HP)

Sunder (since deceased) through LRs v. Ram Saran

2014-05-27

DHARAM CHAND CHAUDHARY

body2014
JUDGMENT Dharam Chand Chaudhary, J. Defendants are in second appeal before this Court. They have been aggrieved by the judgment and decree dated 28.5.2001 passed by learned Additional District Judge, Solan, in Civil Appeal No.17-NL/13 of 2000. 2. The only substantial question framed in the present appeal reads as follows: “Whether in view of the findings on issue Nos.1, 3, 5 and 7, as recorded by the trial Court, could it decree the suit and the District Judge without any appeal/cross-objection against such findings by the respondents negative such findings to support the impugned decree?” 3. The facts in a nutshell are that the predecessorin- interest of the parties to the present lis had landed property in two revenue villages, i.e. Falla and Bhatauli Khurd, Pargana Dharmpur, Tehsil Nalagarh, District Solan. There is no dispute with regard to the succession of the property by the parties situated in village Falla. The dispute, however, is qua the estate of their predecessor-in-interest in village Bhatauli Khurd, because the mutation thereof was attested only in favour of defendants No. 1 and 2, the son and daughter of pre-deceased son of late Shri Narainoo and defendants No.3, 4, 5 and 6. Shri Fatia, the father of plaintiffs, being son of Kalo, the predeceased daughter of Shri Narainoo, was also one of the co-sharers in the suit land. It has been claimed that while defendants No.1 and 2 had 1 share in the suit land, defendants No.3, 4, 5 and 6 were entitled to 4 shares each, whereas the plaintiffs’ father Shri Fatia 1 share. Suit land in village Bhatauli Khurd, however, was mutated only in favour of defendants No.1 to 6 vide mutation No.154 on 9.12.1968. The plaintiffs remained in possession of the suit land throughout and came to know about this mutation when the defendant started causing interference with their possession in the suit land and alienation thereof by way of sale. Mutation No.154 was, therefore, sought to be declared illegal, null and void and by way of permanent and mandatory injunction, defendants were sought to be directed not to cause any interference with the possession of the plaintiffs over the suit land also to make payment of the sale consideration to the plaintiffs, together with interest at the rate of 15% per annum. 4. 4. Defendants No. 2 to 6 have denied the claim of the plaintiffs being wrong, as according to them, Narainoo was not the absolute owner of the suit land, however, the same was joint Hindu family property in his possession alongwith his surviving coparcener Kalo. After the death of Narainoo, Kalo inherited the suit land and Smt. Savitri and Draupti also bequeathed the property in favour of Kalo. Mutation of the suit property in village Falla was stated to be illegal on account of being attested in favour of ladies. The plaintiffs, therefore, are stated to have no locus-standi to file the suit, which was barred by limitation also. The sale in favour of defendant No.7 is also stated to be legal and valid. 5. Defendant No.1 while denying the case, as set out in the plaint, has submitted that defendants No.1 and 2 are brother and sister in relation and they being co-owners, mutation No.154 has correctly been attested in their favour. Since no objection was raised by anyone at the time of attestation of mutation, in question, therefore, no such objection now can be allowed to be raised. 6. Defeindant No.7 in separate written statement filed on his behalf has come forward with the version that he has purchased the land to the extent of 8-10-0 bighas on payment of Rs.5,05,750/- as sale consideration by defendant No.4, after going through the entries qua the same in the revenue record. Names of plaintiffs were nowhere in existence in the revenue record and as defendant No.4 being one of the co-sharers in the suit land had valid title, therefore, transferred the same by way of sale deed duly executed in his favour. It has, therefore, been claimed that defendant No.7 is a bonafide purchaser on payment of sale consideration and this sale transaction is protected under Section 41 of the Transfer of Property Act. 7. On such pleadings of the parties, the trial Court has framed the following issues: 1. Whether the plaintiff is co-owner to the possession of the suit land? OPP. 2. Whether the entries recorded in the revenue record are wrong, illegal and void? OPP 3. Whether the sale deed No.672 dated 5.8.1994 is illegal, null and void? OPP 4. Whether this suit is maintainable in the present form? OPD-7 5. Whether the plaintiff has no cause of action? 6. Whether this suit is barred by limitation? OPP. 2. Whether the entries recorded in the revenue record are wrong, illegal and void? OPP 3. Whether the sale deed No.672 dated 5.8.1994 is illegal, null and void? OPP 4. Whether this suit is maintainable in the present form? OPD-7 5. Whether the plaintiff has no cause of action? 6. Whether this suit is barred by limitation? OPD-7. 7. Whether the defendant NO.7 is the bonafide purchaser for the consideration, if so its effect? OPD-7. 8. Whether the suit land in the hands of Narainoo was the ancestral property if so, its effect? OPD 4 to 6. 9. Whether this suit is not properly valued for the purpose of the Court fee and jurisdiction? OPD 4 to 6. 10. Relief. 8. In addition to the issues already framed, two more issues were carved out, which also read as follows: 3(a) Whether the plaintiffs are entitled for the relief of injunction, as prayed for? OPP (3b) Whether this suit is barred by limitation? OPD 9. After taking on record the oral as well as documentary evidence on record produced on both sides and on an appreciation thereof, learned trial Court has held the plaintiffs to be owners of the suit land to the extent of 1/6 share. The attestation of mutation only in the names of defendants No.1 to 6, therefore, was held to be illegal, null and void. The suit was held to be well within the period of limitation. The defendants, however, were not found to be in possession of the suit land. It was held that the co-sharers of the plaintiffs have not sold the entire land and still the land measuring about 9 bighas is available on the spot and that on the basis of their title, they are entitled to the possession of the suit land to the extent of their share. The sale of part of the suit land to defendant No.7, therefore, was held to be legal and valid. The prayer for grant of mandatory and permanent prohibitory injunction was, however, declined. Plaintiffs’ suit for the relief of declaration to the effect that they are entitled to the suit land to the extent of 1/6 share comprised in Khewat/Khatauni No.24/24, Khasra No.67, 85, 132 and 147, total measuring 35 bighas 19 biswas, situated in village Bhatauli Khurd and joint possession thereof was decreed vide judgment and decree dated 27.11.1999. 10. Plaintiffs’ suit for the relief of declaration to the effect that they are entitled to the suit land to the extent of 1/6 share comprised in Khewat/Khatauni No.24/24, Khasra No.67, 85, 132 and 147, total measuring 35 bighas 19 biswas, situated in village Bhatauli Khurd and joint possession thereof was decreed vide judgment and decree dated 27.11.1999. 10. The defendants though challenged the judgment and decree passed by learned Sub Judge, Nalagarh, however, unsuccessfully, because learned District Judge has dismissed the appeal with the minor clarification that in view of findings on issue No.7, the same should have been answered in affirmative, i.e. in favour of defendant No.7, however, on account of bonafide mistake came to be answered in negative, i.e. against the said defendant. 11. It is significant to note that learned lower Appellate Court in the last sentence of para 26 has further observed that “it is clarified that alienation exceeding share effecting the rights of plaintiffs shall be deemed illegal.” 12. It is seen in the grounds of appeal that the defendants besides the usual grounds available to them to challenge the legality and validity of the impugned judgment and decree, have vigorously agitated the above quoted clarification on the grounds, inter alia, that when the plaintiffs neither preferred any appeal nor cross-objection against the judgment and decree passed by the trial Court, learned lower appellate Court had no occasion to clarify the matter that alienation exceeding the share of the plaintiffs, having effect on their rights, shall be deemed to be illegal. 13. Shri K.D. Sood, learned Senior Advocate, is fair enough in submitting that the findings recorded on issues No.1, 3, 5 and 7 being based on facts and the evidence available on record may not call for any interference by this Court in the present appeal and according to him, the defendants restrict their claim qua the legality and validity of the clarification that alienation of the suit land by the defendants in excess to their share having effect on the rights of the plaintiffs shall be deemed to be illegal, as according to learned Senior Advocate, no such clarification could have been made by learned lower Appellate Court, without there being either any appeal or cross-objections preferred by the plaintiffs in this behalf. 14. 14. Learned counsel, representing the plaintiffsrespondents, on the other hand, though have supported the impugned judgment to this extent, however, failed to persuade this Court to take similar view of the matter as has been taken by learned lower Appellate Court. 15. The arguments addressed by Mr. K.D. Sood, learned Senior Advocate, find support from the judgment of the Apex court in Banarsi and others Vs. Ram Phal, (2003) 9 SCC 606 . The relevant portion of this judgment reads as follows: “22. For the foregoing reasons we are of the opinion that the first Appellate Court ought not to have, while dismissing the appeals filed by the defendant-appellants before it, modified the decree in favour of the respondent before it in the absence of cross-appeal or cross-objection. The interference by the first Appellate Court has reduced the appellants to a situation worse than in what they would have been if they had not appealed. The High Court ought to have noticed this position of law and should have interfered to correct the error of law committed by the first Appellate Court.” 16. Similar view of the matter has been taken by the Apex Court in Choudhary Sahu (dead) by LRs Vs. State of Bihar, (1982) SCC 232, which reads as follows: “11. Counsel for the State of Bihar, on the other 'hand, referred to Giani Ram & Ors. v. Ramiji Lal & Ors.(1) while construing the provisions of order 41, rule 33, this Court observed: ".. the expression 'which ought to have been passed' means 'what ought in law to have been passed'. If the Appellate Court is of the view that any decree which ought in law to have been passed was in fact not passed by the subordinate court, if may pass or make such further or other decree or order as the justice of the case may require " 12. The object of this rule is to avoid contradictory and inconsistent decisions on the same questions in the same suit. As the power under this rule is in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or cross-objection, it must be exercised with care and caution. The object of this rule is to avoid contradictory and inconsistent decisions on the same questions in the same suit. As the power under this rule is in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or cross-objection, it must be exercised with care and caution. The rule does not confer an unrestricted right to re-open decrees which have become final merely because the Appellate Court does not agree with the opinion of the court appealed from. 13. Ordinarily, the power conferred by this rule will be confined to those cases where as a result of interference in favour of the appellant further interference with the decree of the lower court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience. While exercising the power under this rule the Court should not lose sight of the other provisions of the Code itself nor the provisions of other laws, viz., the Law of the Limitation or the Law of Court Fees etc. 14. In these appeals the Collector on the basis of the material placed before him allowed certain units to the various appellants. In the absence of any appeal by the State of Bihar, there was no justification for the Commissioner to have interfered with that finding in favour of the appellants. The facts and circumstances of these appeals are not such in which it would be appropriate to exercise the power under order 41, rule 33. The Commissioner as well as the High Court committed a manifest error in reversing the finding regarding allotment of units to the various appellants in the absence of any appeal by the State of Bihar when the same had become final and rights of the State of Bihar had come to an end to that extent by not filing any appeal or cross-objection within the period of limitation.” 17. It is seen that learned trial Court on an appreciation of the oral as well as documentary evidence in its right perspective has held that defendant No.7 has purchased portion of the suit land on payment of consideration from a co-sharer. The entitlement of the plaintiffs to inherit the suit land, as per evidence available on record and discussed by learned trial court, is to the extent of 1/6 share. The entitlement of the plaintiffs to inherit the suit land, as per evidence available on record and discussed by learned trial court, is to the extent of 1/6 share. Total suit land is 35-19-0 bighas. The plaintiffs are, therefore, entitled to inherit around 6 bighas of land from the total suit land. There is still 9 bighas of land available in the joint possession, as learned trial Court has held while answering issue No.3A. 18. In view of the findings of facts so recorded by the trial Court, there was no occasion to learned lower Appellate Court to have observed by way of so called clarification that the alienation of land by the defendants in excess to their share having effect on the rights of the plaintiffs shall be deemed to be illegal, particularly when the plaintiffs neither preferred any appeal against the judgment and decree passed by learned trial Court nor the cross-objections. Learned lower Appellate Court has, therefore, committed illegality and irregularity while modifying the judgment and decree passed by the trial Court at its own without there being any appeal/cross objections, preferred by the plaintiffs in this behalf. The case law cited on behalf of the defendants and discussed hereinabove, is squarely attracted and applicable to the point in issue in the present appeal. The observation that the alienation of land by the defendants in excess to their share having effect on the rights of the plaintiffs shall be deemed to be illegal, therefore, being contrary to the given facts and circumstances and also the legal principles discussed hereinabove is perverse, hence legally unsustainable. The same, therefore, is quashed and set aside. 19. Consequently, the impugned judgment and decree is modified to the above extent. The appeal stands accordingly disposed of.