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2016 DIGILAW 1922 (HP)

Vivek Sharma v. Ram Rakha

2016-09-08

TARLOK SINGH CHAUHAN

body2016
JUDGMENT : Tarlok Singh Chauhan, J. This petition under Article 227 of the Constitution of India takes exception to the judgment rendered by learned District Judge, Una, District Una, on 4.6.2016 in Civil Misc. Appeal No. 42/2015 whereby he set-aside the order of ad-interim injunction granted by learned Civil Judge (Jr. Division), Court No.1, Una, H.P. on 19.6.2015 in favour of the petitioners/plaintiffs. 2. The facts as necessary for determination of this lis are that the petitioners/plaintiffs filed a suit for declaration that they are co-owners in joint possession of the suit land and the same was held by respondent No.1as coparcenary property in which the petitioners have right by virtue of their birth in the family. The parties are Brahmins by caste and in matters of alienations they are governed by customary law. The defendant/respondent No.1 with ulterior motive illegally entered into sham transaction vide registered gift deeds in favour of defendants No. 2 to 5 vide Basika Nos. 25, 26 and 27 which are illegal, null and void, inoperative and ineffective against the rights of the petitioners/plaintiffs. The petitioners prayed for declaring the aforesaid gift deeds as illegal, null and void and by way of consequential relief, a prayer for injunction was made. Alongwith the suit, an application for temporary injunction was filed before the learned trial Court. 3. The respondents/defendants resisted and contested the suit as well as application by filing written statement and reply wherein it was categorically denied that the suit land was ancestral and coparcenary property in the hands of respondent No.1. According to the respondents, the suit land was self acquired property of respondent No.1 and as such, he was free to deal with the same in the manner he liked. The execution of the gift deeds was not denied, however, it was emphatically denied that these deeds were in any manner wrong, illegal, null and void as alleged. 4. The learned trial Court granted injunction in favour of the petitioners, against which order the respondents filed an appeal that has been allowed by learned District Judge, Una vide order dated 4.6.2016. It is this order which has been assailed in this petition. 5. It is vehemently argued by Mr. 4. The learned trial Court granted injunction in favour of the petitioners, against which order the respondents filed an appeal that has been allowed by learned District Judge, Una vide order dated 4.6.2016. It is this order which has been assailed in this petition. 5. It is vehemently argued by Mr. V.B.Verma, learned counsel for the petitioners that the impugned order under challenge is the result of misreading and misunderstanding of the facts inasmuch as the learned lower Appellate Court has failed to consider that the ancestral land of the parties was acquired by the State of Haryana for the construction of Bhakra Beas Dam on 9.10.1958 and the land under dispute was purchased by the predecessor-in-interest of the parties in the year 1959 out of the proceeds received by way of compensation in lieu of the aforesaid acquisition. It is also argued that though the relevant record was placed before the learned lower Appellate Court to substantiate this fact, but the same has virtually been ignored by the learned Court below. I have heard learned counsel for the parties and gone through the records of the case carefully and meticulously. 6. The petitioners have placed on record the copy of the suit instituted by them and it would be evident from a perusal thereof that the pleas being put forth before this Court and the learned Courts below have in fact not been raised in the suit. When confronted with this, learned counsel for the petitioners would argue that there are number of documents placed on record which clearly prove beyond any doubt that the ancestral land of the parties was acquired for the construction of Bhakra Beas Dam and the land under dispute had been purchased from the proceeds of such acquisition. 7. I am afraid that such contention of the petitioners cannot be accepted as it is more than settled that the pleadings of the parties form the foundation of their case and it is not open for them to give up the case set up in the pleadings and propound a new and different case. The documents accompanying the plaint at best can be considered as evidence, that too, if proved in accordance with law. Therefore, in absence of pleadings, evidence, if any, produced by the parties cannot be considered. The documents accompanying the plaint at best can be considered as evidence, that too, if proved in accordance with law. Therefore, in absence of pleadings, evidence, if any, produced by the parties cannot be considered. It needs no reiteration that no party can travel beyond its pleadings and no amount of evidence which is contrary to the pleadings of the parties can be looked into. Therefore, in such circumstances, it was necessary for the petitioners to have led proper foundation of their case in the pleadings itself. 8. As observed earlier, the case now being put forth by the petitioners is not even their pleaded case and, therefore, the learned lower Appellate Court committed no illegality or irregularity while making the following observations: ”11. Admittedly, in the latest revenue record Sh. Ram Rakha, defendant No.1, has been recorded as absolute owner in possession of the suit land as is evident from the copy of jamabandi for the year 2011-12. There is not even an iota of evidence on record which prima facie shows that the suit land had devolved upon Sh. Ram Rakha from his father or father’s father by way of natural succession. On the other hand from the perusal of jamabandi for the year 1957-58 it is revealed that the suit land was owned by one Sh. Bhagat Ram and the same was purchased by Sh. Ram Rakha from him for consideration of Rs.9500/- regarding which the mutation No.333 was sanctioned on 20.4.1959. The plaintiffs have neither pleaded nor produced any prima facie evidence to show that this land was purchased by Sh. Ram Rakha from the award amount of his land acquired for construction of Bhakara Dam. The plaintiffs have also neither pleaded nor produced any prima-facie evidence to show that the land which was acquired for construction of Bhakara Dam was ancestral and coparcenary land in the hands of Sh. Ram Rakha qua the plaintiffs. Therefore, simply because the plaintiffs are grandsons of Sh. Ram Rakha would not make the suit land in his hands as ancestral and coparcenary without any evidence showing that the same was devolved upon him from his lineal male ancestors by way of natural succession or acquired from the joint family funds.” 9. An action at law is not a game of chess, therefore, a litigant cannot prevaricate and take inconsistent positions. An action at law is not a game of chess, therefore, a litigant cannot prevaricate and take inconsistent positions. It is one of those fundamental principles of jurisprudence that litigants must observe total clarity and candour in their pleadings. (Vide: Ritesh Tewari & Anr. v. State of Uttar Pradesh & Ors., (2010) 10 SCC 677 ; and Amar Singh v. Union of India and others (2011) 7 SCC 69 ). 10. Having said so, I find no merit in this petition and the same is accordingly dismissed, so also the pending applications, if any, leaving the parties to bear their own costs. Interim order granted on 17.6.2016 is vacated.