Research › Search › Judgment

Himachal Pradesh High Court · body

2015 DIGILAW 411 (HP)

Parkash Singh v. Girdhari

2015-04-28

RAJIV SHARMA

body2015
JUDGMENT : Justice Rajiv Sharma, J. This regular second appeal is directed against the judgment and decree of the learned Additional District Judge (I), Kangra at Dharamshala, H.P. dated 30.8.2001, passed in Civil Appeal No.86-N/99. 2. Key facts, necessary for the adjudication of this regular second appeal are that one Chatru alias Chattar Singh filed a suit for declaration to the effect that he was owner-in-possession of the land detailed in the headnote of the plaint (hereinafter referred to as the suit land) and the mutation of gift No. 118 was illegal, null and void. The sale of Kh. Nos. 145, 146, 151, 152 and 154, made by defendant No. 1 in favour of defendants No. 2 to 5 was illegal, null and void. As a consequential relief, the defendants were sought to be restrained from interference in the rights of ownership and possession over the suit land of the plaintiff. Defendant No. 1 colluded with revenue officials and managed to get his name recorded in the revenue record as his Dharamputra (adopted son). He managed to get attested mutation No. 118 in his favour. 3. The suit was contested by the defendants. Defendant No. 1 claimed himself to be owner-in-possession of the suit land. The suit land was gifted to him by Chatru in the year 1947. He was continuously coming in possession of the suit property. The sale deed effected by him in favour of defendants No. 2 to 5 was legal and valid. Defendants No. 2 to 5 claimed themselves to be owner-in-possession of the land purchased by them. 4. The replication was filed by the plaintiffs to the written statements filed by the defendants. The learned Sub Judge Ist Class (I), Nurpur, Distt. Kangra, H.P., framed the issues on 4.2.1994. The learned Sub Judge Ist Class (I), Nurpur, dismissed the suit on 13.11.1996. The legal heirs of Chatru, namely, Parkash Singh, Raghubir Singh, Dharam Singh and Sukhdev Singh, feeling aggrieved, preferred an appeal before the learned District Judge, Kangra at Dharamshala. The learned Additional District Judge, Kangra at Dharamshala, dismissed the appeal on 30.8.2001. Hence, this regular second appeal. 5. The Regular Second Appeal was admitted on the following substantial question of law on 4. 11.2003: ?1. Whether the Courts below have wrongly held that the cause of action to file the suit was personal to Sh. The learned Additional District Judge, Kangra at Dharamshala, dismissed the appeal on 30.8.2001. Hence, this regular second appeal. 5. The Regular Second Appeal was admitted on the following substantial question of law on 4. 11.2003: ?1. Whether the Courts below have wrongly held that the cause of action to file the suit was personal to Sh. Chatro and did not survive to the plaintiff-appellants who are his legal representatives, on the basis of the Will, when the Will was not disputed by the defendants? 2. Whether both the courts below have wrongly dismissed the suit of the plaintiff-appellants being barred by limitation without taking into consideration the question as to when the cause of action to file the suit arose? Are not such findings erroneous, illegal and perverse? 3. In the absence of any pleadings of custom or any other law, could the courts below presume the factum of adoption in favour of defendant No. 1 by basing their findings on inadmissible evidence/document Exhibit DW-2/A, particularly when there was no evidence produced or proved on the record proving the necessary ingredients of the adoption ceremony? 4. Whether the findings of both the courts below that the suit land stood gifted to defendant No. 1 through Sh. Chatro are illegal, which are based on inadmissible evidence Exhibit DW-2/A and Exhibit DW-2/B which were inadmissible in evidence and also not proved in accordance with law?? 6. Since all the substantial questions of law are inter-connected, hence are taken up together for discussion to avoid repetition of evidence. 7. Mr. Bhupender Gupta, Sr. Advocate, for the appellants has vehemently argued that both the courts below have come to the wrong conclusion that the suit was barred by limitation. He then contended that the Courts below have wrongly presumed the factum of adoption in favour of defendant No.1. He also contended that the courts below have wrongly placed reliance upon Ext. DW-2/A and DW-2/B. On the other hand, Mr. Ajay Sharma, Advocate, for respondent No. 1 has supported the judgments and decrees passed by both the Courts below. 8. I have heard the learned Advocates for the parties and gone through the records of the case carefully. 9. PW-1 Parkash Chand testified that Chatru was owner-in-possession of the suit land. Chatru never adopted Girdhari nor gifted suit property to him. 8. I have heard the learned Advocates for the parties and gone through the records of the case carefully. 9. PW-1 Parkash Chand testified that Chatru was owner-in-possession of the suit land. Chatru never adopted Girdhari nor gifted suit property to him. They were owners of the suit land on the basis of the Will executed by Chatru in their favour vide Ext. P-1. PW-2 Sh. Mangat Ram has scribed the Will Ext. P-1. He scribed the Will at the instance of Chatru. The contents were read over and explained to him who admitted it to be correct and put his thumb impression over it. PW-3 Saran Singh is the attesting witness to Will Ext. P- 1. This witness also deposed that Will was executed at the instance of Chatru. PW-4 Chhajju Singh and PW-5 Roda Ram have deposed that Chatru never adopted Girdhari nor gifted the suit property to him. 10. Sh. Roshan Lal DW-1 has proved his endorsement on the application as Ext. DW-1/A. Sh. Hans Raj, DW-2 has proved copy of Roznamcha Ext. DW-2/A and copy of mutation as Ext. DW-2/B. Defendant No. 1 Girdhari Lal has appeared as DW-3. He testified that he was adopted by Chatru and suit land was gifted to him. Sh. Rattan Singh DW-4 is the Lambardar of village Dankuan. He testified that earlier, he used to collect revenue of the suit land from Chatru and later on, he started collecting it from Girdhari. Defendant No. 5 has appeared as DW-5. He testified that he purchased land from Girdhari vide sale deed dated 15.3.1986 for Rs. 15,000/-. He proved sale deed Ext. DW-3/A. The defendants have also brought on record Jamabandi of the suit land from the year 1950-51 to 1991-92. 11. According to Ext. DW-2/A, copy of Roznamcha No. 178 dated 11.12.1946, gift of the suit land was made in favour of defendant No. 1 by Chatru Chatar Singh himself. The copy of the mutation is Ext. DW-2/B. It was sanctioned in the year 1946. The defendant No. 1 has been shown to be in possession of the suit property as per Ext. D1 to D- 10, jamabandi (s) beginning from the year 1950-51 up to 1991-92. The defendant No. 1 has been shown as adopted son of the Chatar Singh. The plaintiff has not led any evidence to rebut these entries. 12. Mutation was attested vide Ext. D1 to D- 10, jamabandi (s) beginning from the year 1950-51 up to 1991-92. The defendant No. 1 has been shown as adopted son of the Chatar Singh. The plaintiff has not led any evidence to rebut these entries. 12. Mutation was attested vide Ext. DW-2/B and the copy of the rapat roznamcha No. 178 is dated 11.12.1946. The roznamcha has been got recorded by Chatar Singh himself. The roznamcha is dated 11.12.1946 and the suit was instituted on 21.9.1987. The learned courts below have rightly come to the conclusion that the suit was barred by limitation. 13. Now, the question is whether the suit was maintainable and could be continued by the plaintiffs after the death of Chatru? Since the land has already been gifted by Chatru to defendant No. 1, they could not claim the ownership on the basis of Will Ext. P-1 dated 3.11.1987. Chatru could not execute the Will on 3.11.1987 once he has already gifted the land to defendant No. 1. Rather Chatru himself could not file the suit after executing gift deed in favour of defendant No.1, more particularly when he was no more owner-in-possession of the suit property. 14. The revenue entries were made in the year 1946. It is not believable that Chatru was not aware of these revenue entries. Chatru was required to challenge the entries got recorded by him in roznamcha on 11.12.1946 where defendant No. 1 was recorded as adopted son of Chatru alias Chattar Singh, within a reasonable period. These entries, as noticed hereinabove, existed for more than 30 years but were never challenged. It cannot be believed that Chatru and plaintiffs were not aware of these developments including the recording of entries in roznamcha dated 11.12.1946 and sale deed made by defendant No. 1 in favour of defendant Nos. 2 to 5. The learned Courts below have correctly appreciated the oral as well as documentary evidence Ext. DW-2/A and DW-2/B. 15. Mr. Bhupender Gupta, learned Senior Advocate, could not convince this Court how Ext. DW-2/A and Ext. DW-2/B were not admissible in evidence. The substantial questions of law are answered accordingly. 16. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending application (s), if any. The judgments and decrees passed by both the Courts below are affirmed.