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2016 DIGILAW 1991 (HP)

Hansi Devi v. Raj Kumari

2016-09-16

SANDEEP SHARMA

body2016
JUDGMENT : Sandeep Sharma, J. Instant regular second appeal filed under Section 100 of CPC is directed against the judgment and decree dated 2.4.2004 (in short ‘the impugned judgment’), passed by the learned District Judge, Una, HP, in Civil Appeal No. 70/2002, reversing the judgment dated 30.5.2002, passed by learned Sub Judge, Ist Class, Court No.1, Amb, District Una, HP, in Civil Suit No.40/1 of 1998. 2. Briefly stated facts as emerged from the record are that the appellant (hereinafter referred to as the ‘plaintiff’) and proforma defendants No. 4 and 5 filed suit for possession by way of specific performance of agreement/sale deed No. 270 dated 26.3.1975 (Ext. P Whether 1), whereby predecessor-in-interest of present defendants sold 39 Kanals, 15 Marlas land denoted by khasra Nos. 1254, 1296, 1297, 1305, 1310, 1311, 1312, 1313, 1302, 1303, 1304, 1255, 1319, 1336 and 1335 situated in village Seri to the plaintiff, as entered in Jamabandi for the year, 1971-72. It also emerge from the record that in the aforesaid sale deed, khasra Nos. 1335 & 1336 were wrongly shown in cultivation of Roshan Lal, S/o Partapu and Smt. Prito, D/o Kailoo in the revenue record as tenant-at-will at the time of the sale deed. Vide aforesaid sale deed, late Partap Singh had agreed to give land of equal quantity and kind in village Seri to the plaintiff, in case vendee loses his title and possession over khasra Nos. 1335 and 1336. The tenants acquired proprietary rights qua these khasra Numbers on 24.7.1996. Plaintiff further averred in the plaint that deceased Partap Singh failed to take steps to get revenue corrected in favour of the plaintiff. Plaintiff claimed that the names of tenants continued to exist in the revenue record in respect of these two khasra number, as a result of which, tenants became owner of the aforesaid khasra numbers by way of operation of law as per mandate of Section 104 of HP Tenancy and Land Reforms Act. Consequent to aforesaid development, plaintiff and proforma defendants lost their title as well as possession and in these khasra numbers. Plaintiff averred in the plaint that defendants were repeatedly requested to take necessary steps for correction of revenue record as per stipulation in the sale deed but all in vain, as a result of which, plaintiff and proforma defendants were deprived of khasra Nos. 1335 and 1336. Plaintiff averred in the plaint that defendants were repeatedly requested to take necessary steps for correction of revenue record as per stipulation in the sale deed but all in vain, as a result of which, plaintiff and proforma defendants were deprived of khasra Nos. 1335 and 1336. In the aforesaid background, plaintiff filed suit (as mentioned above) for decree of possession by way of specific performance of agreement/sale deed dated 26.3.1975, whereby predecessor-in-interest of defendants had agreed to give land of equal quantity and kind in village Seri in case vendee loses his title and possession of khasra Nos. 1335 and 1336. Defendants by way of written statement raised preliminary objections qua the limitation, estoppel, non-joinder and mis-joinder of necessary parties, cause of action and maintainability. Defendants also stated that plaintiff and proforma defendants are estopped by their own act and conduct to file the suit and as such, suit is not maintainable nor learned trial Court has jurisdiction to try the same. Defendants while admitting the execution of sale deed at the behest of predecessor–in-interest of defendants denied the contents of the same. Defendants specifically stated that the plaintiff as well as proforma defendants were put in possession of the entire land at the time of execution of sale deed, as a result of which, predecessor–in-interest of the defendants was divested of the title qua the property disclosed in the sale deed. Defendants further contended that the plaintiff and proforma defendants requested to get entries corrected in the revenue record after effecting of sale by the predecessor–in-interest of the defendants and as such, they cannot be punished for the wrongs having been committed by the plaintiffs. Defendants also stated that possession of the entire property was delivered to the plaintiff and proforma defendants after execution of sale deed and no steps were taken by the plaintiff for correction of revenue entries and defendants cannot be blamed for the lapse, if any. While praying for the dismissal of the suit defendants stated that neither defendants are required to execute sale deed in favour of the plaintiff and proforma defendants, nor delivery of possession can be ordered and decided qua the land vested in the tenants. In replication, plaintiff while re-appreciating the claim set up in the plaint, disputed the written statement in toto. 3. In replication, plaintiff while re-appreciating the claim set up in the plaint, disputed the written statement in toto. 3. Learned trial Court on the basis of aforesaid pleadings and evidence, be it ocular or documentary adduced on record by the respective parties, framed issues and decreed the suit of the plaintiff to the effect that defendants will execute sale deed qua the suit land in favour of the plaintiff and proforma defendants in order to comply with the terms of the sale deed Ext.P1 having been agreed upon inter-se predecessor-in-interest of the defendants and plaintiff. Being aggrieved and dis-satisfied with the aforesaid judgment and decree dated 30.5.2002, passed by the learned trial Court, defendants filed an appeal before the learned District Judge, Una. However, fact remains that the learned District Judge, vide judgment dated 2.4.2004, accepted the appeal preferred by the defendants and dismissed the suit filed by the plaintiff for specific performance of the agreement. Hence, this second appeal before this Court by the plaintiff. 4. This Court vide order dated 8.6.2005 admitted the present appeal on following substantial question of law:- 1. Whether the learned District Judge misconstrued, misinterpreted the pleadings and evidence of the parties. 2. Whether the learned Distt. Judge has mis-interpreted the material on record i.e. Ext.P-1. 3. Whether the learned court below has failed to appreciate the presumption of truth attached to the Ext.P-1 (Sale Deed). 5. Mr. Ajay Dhiman, Advocate, appearing for the appellant vehemently argued that the impugned judgment and decree passed by the learned first Appellate Court is not sustainable in the eye of law as the same is not based upon the correct appreciation of evidence adduced on record by the respective parties. He contended that bare perusal of the impugned judgment suggests that learned Appellate Court misinterpreted and misconstrued the pleadings available on record and the judgment is purely based upon the conjectures and surmises and as such, same cannot be allowed to sustain. With a view to substantiate his aforesaid plea, Mr. Dhiman, made this Court to travel through the agreement/sale Deed Ext.P-1 entered inter-se the parties on 26.3.1998 to demonstrate that predecessor–in-interest of the defendants at the time of execution of aforesaid sale deed had specifically agreed that in case, the plaintiff is divested from land after conferment of rights on the tenants, he would compensate them by providing equal land in the same village. Mr. Mr. Dhiman, strenuously argued that it stands duly proved on record that the agreement/sale deed Ext.P1 was duly executed on 26.3.1998, by the predecessor–in interest of the defendants and as such, learned First Appellate Court has fallen in grave error while dismissing the suit and upsetting the findings returned by the learned trial Court, wherein learned trial Court on the basis of evidence adduced on record had come to the conclusion that the defendants being LRs of the late Partap Singh, predecessor-in-interest, who had executed sale deed, are under obligation to provide land in terms of the agreement/sale deed. While concluding his arguments, Mr. Dhiman carried this Court through the evidence led on record by the respective parties, to demonstrate that there was ample evidence on record suggestive of the fact that sale deed Ext.P-1 was duly executed by the predecessor–in-interest of defendants, whereby he had agreed to compensate the land of equal quantity as discussed ibid. In the aforesaid background, Mr. Dhiman prayed that the present appeal may be allowed and the impugned judgment be quashed and set-aside. 6. Per contra, Mr. Ajay Sharma, Advocate, representing the defendants supported the judgment passed by the learned first appellate Court. He forcefully argued that bare perusal of the impugned judgment clearly suggests that the First Appellate Court while accepting the appeal preferred on behalf of the defendants has dealt with each and every aspect of the matter very meticulously, and as such, no interference, whatsoever, of this Court is warranted in the present facts and circumstances. Mr. Sharma, strenuously contended that the suit filed by the plaintiff was not legally maintainable, as it stood proved on record that late Partap Singh being original owner, had given possession of entire land to the plaintiff on the basis of sale deed Ext.P-1 dated 26.3.1975. As per Mr. Sharma, since late Partap Singh had handed over possession of the land sold in terms of the sale deed to the plaintiff, stipulation, if any, qua the handing over of the possession stood fulfilled and no suit whatsoever, at this belated stage, could be entertained by the court below and, as such, there is no illegality and infirmity in the impugned judgment, whereby judgment passed by the learned trial Court was quashed and set-aside. Mr. Mr. Sharma, forcefully contended that the suit filed by the plaintiff was patently time barred because tenants over the land had become owners of the suit land in the year, 1975 when the Act came into force. With a view to substantiate his aforesaid argument, Mr. Sharma invited attention of this Court to Section 104 of the Act to demonstrate that conferment of proprietary right under the Act was automatic, meaning thereby, with the commencement of aforesaid Act, tenants over the suit land had become owners in the year, 1975 itself and admittedly, no steps whatsoever, were taken by the plaintiff to get the revenue record corrected, as a result of which, proprietary rights were conferred upon the tenants, who were admittedly in possession of the land at the time of execution of sale deed. While concluding his argument, Mr. Sharma invited attention of this Court to the sale deed to suggest that agreement/sale deed, if any, was entered upon by the plaintiff with open eyes fully knowing that land proposed to be sold is under tenancy. Mr. Sharma, also contended that bare perusal of recital made in the sale deed clearly suggests that plaintiff was made aware that land, which was proposed to be sold, may be given to the tenants by way of conferment of proprietary rights. In the aforesaid background, he prayed for the dismissal of the present appeal. 7. I have heard learned counsel for the parties as well carefully gone through the record 8. Careful perusal of the pleadings as well as submissions having been made on behalf of the counsel representing the parties, clearly suggests that there is no dispute at all qua the execution of sale deed Ext.P-1, whereby Partap Singh (predecessor–in-interest of defendants), being original owner sold the suit land to the plaintiff and proforma defendants and as such, this Court in view of this aforesaid aspect of the matter as well as substantial questions of law framed at the time of admission (reproduced supra) would be examining ocular as well as documentary evidence led on record by the respective parties to explore the answers to the substantial question of law. 9. 9. During proceedings of the case, this Court had an occasion to peruse the sale deed Ext.P-1, perusal whereof suggests that vide sale, original owner partap Singh sold 39 kanals 15 marlas of land to the plaintiff for the consideration of ` 16,000/-. It also emerges from the record that at the time of aforesaid sale, Ext.P-1, two khasra Nos. 1335 and 1336 measuring 12 kanals, were under the tenancy of Shri Roshanl Lal and Smt. Prito. Aforesaid factum qua the tenancy of Shri Roshan and Prito, stands mentioned in para-2 of the plaint. It is also admitted case of the parties that after execution of the aforesaid sale deed, plaintiff along with proforma defendants were put in possession of the entire chunk of land including khasra Nos. 1335 and 1336, which were under the tenancy of Roshan Lal and Prito. Plaintiff also claimed in his plaint that proprietary rights were conferred upon the aforesaid tenants vide mutation No. 70 dated 24.7.2006, as a result of which, plaintiff as well as proforma defendants were dispossessed from that portion of land by the tenants. The plaintiff also claimed that they had approached the defendants and their predecessor–in-interest several times regarding the correction of entries but no application was ever moved in this regard. As per the plaintiff, correction, if any, in the records after conferment of proprietary rights qua the aforesaid khasra numbers in favour of Roshan Lal and Prito was to be made by the defendants in terms of the stipulation contained in the sale deed Ext.P-1. Admittedly, in the present case, vide sale deed, dated 26.3.1975, deceased Partap Singh (Original Owenr) had delivered possession of 39 kanals 15 marlas in favour of the plaintiff and proforma defendants. Aforesaid factum of delivery of possession vide sale deed Ext.P-1 has not been disputed by the plaintiff, meaning thereby, pursuant to sale deed, plaintiff was put in possession of the land described in the sale deed. 10. Aforesaid factum of delivery of possession vide sale deed Ext.P-1 has not been disputed by the plaintiff, meaning thereby, pursuant to sale deed, plaintiff was put in possession of the land described in the sale deed. 10. Now question which needs to be examined is whether stipulation mentioned in the sale deed that vendor would be responsible for handing over the tenancy of land in favour of the vendee if for any reason part of sold land goes out of the ownership of the vendee, is of any consequence, when it stands duly proved on record that pursuant to sale deed, plaintiff was put in possession of the entire sold land by late Partap Singh. Though perusal of sale deed Ext.P-1,suggests that original owner (predecessor–in-interest of defendants) had agreed that he would transfer equal land of same quality and nature from the same village to the plaintiff, if for any reason part of the sold land goes out of the ownership of the vendee including khasra No. 1335 and 1336, which were under the tenancy of tenants, meaning thereby, plaintiff was put into possession of entire sold land including aforesaid khasra numbers which were admittedly under tenancy of the tenants named above. It also emerges from the record that the plaintiff was dispossessed only after conferment of proprietary rights vide mutation No. 70 dated 24.7.1996 upon the tenants. Though, this Court after seeing aforesaid aspect of the matter is of the view that the Partap Singh (predecessor–in-interest of present defendants) had performed his part in terms of the sale deed Ext.P-1, whereby he admittedly delivered the possession of 39 kanals 15 marlas of land, which he sold in favour of the plaintiff and proforma defendants but admittedly, in the present case, plaintiff was dispossessed of the land comprising of khasra Nos. 1335 and 1336 after conferment of proprietary rights of tenants on 24.7.1996. But there is nothing on record suggestive of the fact that plaintiff ever took any steps between 26.3.1975 till filing of present suit in the year, 1998 to get the revenue record corrected, especially, knowing fully well that land, which they had purchased from deceased Partap Singh, was under tenancy of Roshan Lal and Smt. Prito. But there is nothing on record suggestive of the fact that plaintiff ever took any steps between 26.3.1975 till filing of present suit in the year, 1998 to get the revenue record corrected, especially, knowing fully well that land, which they had purchased from deceased Partap Singh, was under tenancy of Roshan Lal and Smt. Prito. Though, plaintiff had taken stand that it was the duty of defendant or his successor-in-interest to get the revenue record corrected in terms of stipulation contained in Ext.P1 (sale deed) but this Court, after seeing the recitals contained in the sale deed, is of the view that plaintiff failed to take steps, if any, for correction of revenue entries for almost 23 years and there is no document available on record to demonstrate that during this period, they ever made an attempt to persuade deceased Partap Singh or his successor-in-interest to get the revenue record corrected in terms of sale deed. 11. PW1-plaintiff himself stated that in the month of June, plaintiff was dispossessed from the suit land after conferment of proprietary rights in favour of the tenants in 1976. It has also come in his statement that request was made to the contesting defendants regarding the correction of entries in faovur of the plaintiff, but no action was taken. Similarly, plaintiff examined PW2 and PW3 to prove factum of execution of sale deed Ext.P-1, which nowhere suggests that they were able to prove that plaintiff at any point of time made an effort to persuade the deceased Partap Singh or his successors to get the revenue record corrected in terms of stipulation made in the sale deed, whereas defendant namely Hardyal Singh DW-1 stated that sale deed was effected by his father in favour of the plaintiff but he is not aware of the contents of the same. He also feigned ignorance as to whether deceased Roshan Lal and Prito Devi were tenants of 14 kanals of land, which were sold to the plaintiff and proforma defendants, however, he admitted that defendants were conferred proprietary rights. 12. Careful perusal of evidence led on record by the plaintiff nowhere suggests that an effort was ever made by the plaintiff after execution of sale deed in 1975 to persuade/compel deceased Partap Singh or his successors to get revenue entries corrected. 12. Careful perusal of evidence led on record by the plaintiff nowhere suggests that an effort was ever made by the plaintiff after execution of sale deed in 1975 to persuade/compel deceased Partap Singh or his successors to get revenue entries corrected. Apart from above, proprietary rights were conferred upon the tenants namely Roshan Lal and Prito on 24.7.1996, whereas present suit was filed on 27.2.1998 and there is no evidence available on record suggestive of the fact that plaintiff took any steps for correction of revenue record being the original owner of the land comprising of khasra Nos. 1335 and 1336. Admittedly pursuant to sale deed Ext.P1, plaintiff had become owner of the khasra Nos. 1335 and 1336, which were under the tenancy of Roshan Lal and Prito Devi and steps, if any, for correction of revenue record could be taken by the original owner for correction of the revenue record. Perusal of Jamabandi for the year 1971-72 (Annexure P-6), suggests that tenants Roshan Lal and Prito were shown to be tenants of (old khasra No. 1336 ) new khasra No. 327 measuring 0-04-93 and old khasra No.1335 (new khasra Nos. 324,325,326 and 328 kita 4 measuring 0-48-64) respectively and plaintiff was fully aware that 14 kanals of land out of 39 kanals land, which was purchased by him vide sale deed Ext.P1, was under the tenancy of Roshan Lal and Prito. But despite that he failed to take any steps for almost 23 years. Moreover, as has been observed above, steps, if any for correction of revenue record as stipulated in sale deed Ext.P1 could be taken by the plaintiff, who, pursuant to the sale deed, had admittedly acquired the status of owner of the land bearing khasra Nos. 1335-1336, which were under tenancy. 13. Moreover, as has been observed above, steps, if any for correction of revenue record as stipulated in sale deed Ext.P1 could be taken by the plaintiff, who, pursuant to the sale deed, had admittedly acquired the status of owner of the land bearing khasra Nos. 1335-1336, which were under tenancy. 13. Though perusal of the judgment passed by the both the Courts below suggests that aspect qua the binding effect, if any, of sale deed executed by predecessor-in-interest on the successor-in-interest, who executed sale deed, has been not gone into by the courts below but since, this Court had an occasion to peruse the sale deed Ext.P-1, and it is not understood how successor-in-interest of original owner could be held liable to execute sale deed qua the suit land in favour of the plaintiff in terms of sale deed Ext.P1 admittedly, having been executed by late Partap Singh, successor-in-interest of present defendants in the absence of binding clause, if any. Perusal Ext.P1 also suggests that deceased Partap Singh had agreed that in case, for any reason, part of the sold land goes out of their ownership, he would transfer equivalent land of same quality and nature from the same village but close scrutiny of Ext.P1 nowhere provided that his successor would be bound by condition stipulated in Ext.P1. 14. In the instant case, plaintiff purchased land fully knowing that khasra No. 1335-1336 were under the tenancy of Roshan Lal and Prito. From the perusal of sale deed, it can also be presumed that plaintiff was aware that tenants (Roshan Lal and Prito) could be conferred proprietary rights qua the aforesaid two khasra numbers (Khasra Nos. 1335 and 1336) because otherwise, there was no occasion, whatsoever, for the original owner to make stipulation in the sale deed while making sale to the plaintiff that in case, for some reasons sold land goes out of the owner ship of the vendee, he would transfer the equivalent land (as mentioned supra). 15. Hence, this Court is of the view that plaintiff purchased khasra Nos. 1335 and 1336 knowing fully well that proprietary rights qua the same may be conferred upon the tenants and as such, at this belated stage, this court sees no justification for demand raised by the plaintiff that they may be compensated in terms of agreement/sale deed by the successors of deceased Partap Singh. 1335 and 1336 knowing fully well that proprietary rights qua the same may be conferred upon the tenants and as such, at this belated stage, this court sees no justification for demand raised by the plaintiff that they may be compensated in terms of agreement/sale deed by the successors of deceased Partap Singh. At the cost of repetition, it may be stated that after 26.3.1975, plaintiff had acquired the status of owner of the suit property including khasra No. 1355 and 1366 (under the tenancy of Roshan Lal and Prito) and as such, application, if any, for correction of mutation No. 70 dated 24.7.1996, whereby proprietary rights were conferred by the Roshan Lal and Prito, could be moved by the plaintiff being owner and not by the successor-in-interest of late Partap Singh. Since late Partap Singh and his successors had lost title of ownership after execution of sale deed Ext.P1, after 26.3.1975, there was no occasion whatsoever, for them to move an application for correction of mutation No. 70 dated 24.7.1996, rather as has been observed above, there is no iota of evidence led on record by the plaintiff suggestive of the fact that at any point of time, he served any notice upon the previous owner Partap Singh or any of his LRs qua the correction of entries. Since petitioner was fully aware of the fact that land which he has purchased from Partap Singh can be further transferred in the name of tenants of Smt. Prito and Roshan Lal, after the conferment of the Act, it was expected from him to take steps immediately after the execution of sale deed on 26.3.1975 for correction of revenue record. Had the plaintiff initiated steps within time after conferment of proprietary rights on Roshan and Prito, there would have been no occasion for him to file the present suit. Since tenants became owner in the year 1974-75 under the provision of Act, 1972, in that eventuality, plaintiff was expected to file suit, if any, for enforcement of his rights in terms of sale deed Ext.P-1 within stipulated period as per Limitation Act. But in the instant case, as per own admission of the plaintiff, he kept mum for almost 23 years and as such, this Court sees no justification in accepting the suit of the present plaintiff at this belated stage. But in the instant case, as per own admission of the plaintiff, he kept mum for almost 23 years and as such, this Court sees no justification in accepting the suit of the present plaintiff at this belated stage. Apart from above, it is not also understood that how stipulation, if any, made in sale deed could be given effect in the absence of specific details if any, qua the land stipulated to be given to the plaintiff in lieu of khasra Nos. 1335 and 1336, which was admittedly entered in the names of Roshan Lal and Prito after commencement of Tenancy Act. Perusal of Sale deed nowhere suggests that which khasra Nos. were to be given to the plaintiff in case land given to plaintiff is reverted back to the tenants after conferment of proprietary rights. No decree for specific performance could be issued in absence of specific details of property, if any, and as such, this Court is unable to accept the contention put forth on behalf of the plaintiff. The substantial questions of law are answered accordingly. 16. Consequently, this Court after perusing the entire evidence available on record is of the view that there is no illegality and infirmity in the judgment passed by the learned first Appellate Court, rather perusal of impugned judgment suggests that same is based upon correct appreciation of the evidence available on record as well as law on the point. Hence, the instant regular second appeal is dismissed being devoid of any merit.