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2016 DIGILAW 1362 (HP)

Som Dutt v. Kamal Dev

2016-07-13

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present Regular Second Appeal under Section 100 of the Code of Civil Procedure is maintained by the appellant/plaintiff (hereinafter called plaintiff) against the respondent/defendant (hereinafter called defendant) assailing the judgment/decree of the learned Court below in Appeal No.173 of 2014 passed by the learned Additional District Judge (II) Una District Una, HP affirming the judgment and decree passed by the learned trial Court. 2. Briefly stated, the facts giving rise to the present appeal are that the appellant (hereinafter referred to as the plaintiff) instituted a suit before the learned trial Court against the respondent for declaration to the effect that the plaintiff was exclusive owner in possession of suit land, and the gift deed dated 9/1/2004 in respect of a part of the land and the consequent mutation thereof, in the name of the defendant were wrong, illegal and void ab initio, and had no effect on the right, title or interest of the plaintiff. The suit was filed on the strength that the plaintiff was an old and illiterate lady, confined to bed for almost two years preceding the suit, on account of various ailments. She was unable to walk and speak clearly. The plaintiff had two sons namely Hem Raj and Som Dutt, who were looking after and maintaining the plaintiff. The defendant was neither related to the plaintiff nor had any connection with her. The defendant being a mischievous person, with the connivance of the petition writer and marginal witness got prepared the impugned gift deed dated 9.1.2004 qua land measuring 0-00-64 square meters, being 8/35 shares out of total land measuring 0-02-80 square meters in his favour. The plaintiff had never executed any gift deed in favour of the defendant and the impugned gift deed was a fraudulent and concocted document. There was no occasion for the plaintiff to have executed any gift deed in favour of the defendant. It was averred therein that about a fortnight prior to the filing of the suit, the defendant, on the strength of the alleged gift deed, had started throwing threats of interference over the suit land, hence the suit. Consequential relief of permanent prohibitory injunction restraining the defendant from further alienating the suit land and changing the nature of the same was also sought. A prayer for possession was also made in the alternative. 3. Consequential relief of permanent prohibitory injunction restraining the defendant from further alienating the suit land and changing the nature of the same was also sought. A prayer for possession was also made in the alternative. 3. The defendant contested the suit by submitting written statement to the plaint, raising primary objections relating to maintainability, waiver, valuation, locus standi and absence of cause of action. On merits, it was averred that the plaintiff had executed a valid gift deed dated 9.1.2004 in favour of the defendant, consequent upon which, the defendant had been coming in possession of the suit land ever since. Mutation in that behalf had also been sanctioned in favour of the defendant. It was further averred that the suit had actually been brought at the instance and behest of the youngest son of the plaintiff, who had forced his mother to file the instant case with a view to harass the defendant. Along with the written statement, the defendant also preferred a counter-claim seeking a decree of permanent prohibitory injunction against the plaintiff, restraining the latter from taking forcible possession or changing the nature of the suit land. The appellant was substituted in place of Ram Asri, who died on 28.4.2004. 4. The learned trial Court framed the following issues: 1. Whether the plaintiff is the exclusive owner in possession of the suit land, as alleged? OPP 2. Whether the gift deed dated 9.1.2004 and mutation No.139 qua the suit land in the name of defendant is wrong and illegal, as alleged? OPP 3. Whether the plaintiff is entitled for injunction? OPP 4. Whether in the alternative, the plaintiff is entitled for possession of the suit land? OPP 5. Whether the plaintiff has no enforceable cause of action against the defendant? OPD 6. Whether the plaintiff has no locus-standi to file the present suit? OPD 7. Whether the right of the plaintiff is waived of after the execution of gift deed dated 9.1.2004? OPD 8. Whether the suit is not maintainable in the present form? OPD 9. Whether the suit land has been valued for the purpose of court fee and jurisdiction? OP Parties? 10. Whether the defendant is owner in possession of the suit land after execution of gift deed dated 9.1.2004, as prayed ? OPD-counter claimant. 11. Whether the defendant/counter claimant is entitled for injunction? OPD-counter claimant 12. Relief. 5. OPD 9. Whether the suit land has been valued for the purpose of court fee and jurisdiction? OP Parties? 10. Whether the defendant is owner in possession of the suit land after execution of gift deed dated 9.1.2004, as prayed ? OPD-counter claimant. 11. Whether the defendant/counter claimant is entitled for injunction? OPD-counter claimant 12. Relief. 5. After giving findings on issues No. 1 to 4 in negative, issues No. 5 to 8 in affirmative, issue No. 9 in negative and issues No. 10 and 11 in affirmative, dismissed the suit of the plaintiff and decreed the counter claim of the defendant. Thereafter, the learned Appellate Court vide impugned judgment uphold the findings of the Court below. The present appeal was admitted on the following questions of law:- “Whether documents EX DW1/A Gift Deed dated 9.1.2004 is the result of misrepresentation and fraud played upon original plaintiff Smt. Ram Asri and the findings of learned Court below is the result of misreading and mis-appreciation of evidence and documents.” 6. The learned counsel for the plaintiff/appellant has argued that the Court below has failed to take into consideration that defendant Kamal Dev was not at all related to the donor Smt. Ram Asri and there was no consideration of love and affection to make gift and so Court below has misread the gift deed and has not interpreted. The same in accordance with law. On the other hand, learned counsel for the defendant has argued that the defendant was son of the cousin of Ram Asri and being nephew of Smt. Ram Asri she had gifted the suit land to the defendant for using the same as path. This Court has gone into the record in detail to appreciate the arguments of learned counsel for the parties. From the record, it is clear that the plaintiff has failed to establish that the gift deed was executed by her as a result of any undue influence, misrepresentation or fraud on the part of the defendant. This being so, once the execution of the gift deed has been proved in accordance with law, no further challenge to the same is sustainable at the instance of the plaintiff. This being so, once the execution of the gift deed has been proved in accordance with law, no further challenge to the same is sustainable at the instance of the plaintiff. The other contention of the plaintiff that the defendant was an utter stranger qua the plaintiff and thus, there was no occasion for her to execute the gift deed in his favour is also falsified by the testimony of PW1, Sureshanand, who has admitted in his cross-examination that the defendant, Kamal Dev, was the son of the cousin brother of the plaintiff, Ram Asri. This fact is further corroborated by a copy of the Shajra Nasab, placed as Mark DX on record. Even otherwise, it is not a requirement of law that a gift can only be made in favour of a relative or a family member. It is interesting to note that PW1, Sureshanand, in his cross-examination has stated that Ram Asri had not come personally to file the case, since she was in a state of shock. However, the present suit has reportedly been filed by Ram Asri herself. Moreover, Somnath, the substituted plaintiff, appearing as PW2, has given a shaky deposition by stating that they had come to know about the gift deed having been executed in favour of defendant, four years after the execution of the same. Furthermore, in his cross examination he admitted that the defendant was related to the plaintiff, Ram Asri, but subsequently resiled from this statement, when recording of his statement was resumed after deferment. Thus, the ocular evidence led on behalf of the plaintiff is inconsistent and does not inspire any confidence. The deposition of the defendant, appearing as DW4, on the other hand, appears to be natural, honest and convincing. 7. The statement of PW1 further shows that the name of the father of Ram Asri was Govind Ram and the name of the brother of Govind Ram was Magar. The son of Magar was Murkhraj and son of Murkhraj was defendant making it clear that as per PW1, Kamal Dev was grand son of the Uncle of Ram Asri. This is also clear from the copy of sajara-ul-nasab, the genealogical table mark -DX, as under:- 7HKOX ' KHUX * RYLQGX 0 DJ KDU 6PW/DFKKP L 6PW 5DP $VUL 9DWQD 6PW 3DUR HYL 0 XONKX ' HV5 DM - DJGLVK . This is also clear from the copy of sajara-ul-nasab, the genealogical table mark -DX, as under:- 7HKOX ' KHUX * RYLQGX 0 DJ KDU 6PW/DFKKP L 6PW 5DP $VUL 9DWQD 6PW 3DUR HYL 0 XONKX ' HV5 DM - DJGLVK . DP DOHY The genealogical table referred above, depicts that Kamal Dev was nephew of Ram Asri. It has also come on record that the land was inherited by Ram Asri from her parental side and in these circumstances, it is clear that Ram Asri has reasons to donate the land for the purpose of path of her nephew Kamal Dev as Kamal Dev was using this path for ingress and outgress from his house to the road. Learned counsel for the appellant has relied upon Lalit Mohan Sharma and T. Kochu Thommen, JJ. AIR 1990 S.C. 1173 , wherein it has been held that : “From the facts narrated above, about which, as stated earlier, there is no dispute, it is clear that this is a case where the plaintiff-appellant was totally ignorant of the mischief played upon her. She honestly believed that the instrument which she executed and got registered was a gift deed in favour of her daughter. She believed that the thumb impressions taken from her were in respect of that single document. She did not know that she executed two documents, one of which alone was the gift deed, but the other was a sale of the property in favour of all the defendants. This was, therefore, a case of fraudulent misrepresentation as to the character of the document executed by her and not mrerely as to its contents or as to its legal effect. The plaintiff-appellant never intended to sign what she did sign. She never intended to enter into the contract to which she unknowingly became a party. He mind did not accompany her thumb impressions. This is a case that falls within the principle enunciated in Ningawwa Vs. Byrappa ( AIR 1968 SC 956 ) (supra) and it was, therefore, a totally void transaction. Accordingly, as stated in Gorakh Nath Dube, ( AIR 1973 SC 2451 ) (supra), the suit is not maintainable by reason of the bar contained in the Act”. 8. This is a case that falls within the principle enunciated in Ningawwa Vs. Byrappa ( AIR 1968 SC 956 ) (supra) and it was, therefore, a totally void transaction. Accordingly, as stated in Gorakh Nath Dube, ( AIR 1973 SC 2451 ) (supra), the suit is not maintainable by reason of the bar contained in the Act”. 8. In the present case, the case of the plaintiff is not that the document was got executed from Smt. Ram Asri by making her to believe that it is some other document and not gift deed so the judgment is not applicable to the facts of the present case. 9. Thus, taking into consideration what is discussed hereinabove this Court finds that the Court below has committed no illegality in relying upon EX.DW1/A, gift deed while adjudicating the lis interse the parties and this court holds that EX.DW1/A, gift deed was not result of misrepresentation and fraud played upon original plaintiff Smt. Ram Asri and so the point is answered against the appellant. As a result of my above findings, the appeal of the appellant deserves dismissal and is accordingly dismissed. However, in the facts and circumstance s, the parties are left to bear their own costs. Pending applications, if any shall also stands disposed of.