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2016 DIGILAW 2136 (HP)

Vijay Kumar v. Anant Ram alias Nantu

2016-10-03

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present regular second appeal is maintained by the appellants/plaintiffs (hereinafter referred to as “the plaintiffs”) assailing the judgment and decree passed by the learned District Judge (Forest), Shimla, in Civil Appeal No. 65-S/13 of 2005, dated 02.09.2006, whereby the learned District Judge, Chamba, has up held the judgment and decree dated 14.09.2004, passed by learned Civil Judge (Junior Division) Theog, District Shimla, in Civil Suit No. 165-1 of 2001. 2. Brief facts giving rise to the present appeal are that the plaintiffs filed a suit for declaration against the respondent/defendant (hereinafter referred to as “the defendant”) seeking declaration to the effect that the plaintiffs be declared owners-in-possession of the land comprised in Khasra No. 61, measuring 2 bighas and 12 biswas, situated in Chak Sarog, Tehsil Theog, District Shimla H.P. (hereinafter referred to as “the suit land”). The plaintiffs also prayed that the revenue entries depicting the defendant co-owner in possession to the extent of half share be declared wrong and illegal. The plaintiffs, as a consequential relief, also prayed for restraining the defendant and his family members from claiming any right in the suit land and also from interfering with the same in any manner. As per the plaintiffs, the defendants in the year 1974 represented that he wanted to sell the suit land and also professed that he has the authority to transfer whole of the land. The plaintiffs agreed to purchase the suit land. Pursuant to the representation, the defendant executed the sale deed in their favour qua the suit land on 12.02.1974, registered in the office of Sub Registrar on the same day, as Deed No. 22 for consideration of Rs.2000/-. At the time of sale deed, possession of the entire suit land was delivered to the plaintiffs and thereafter the suit land was developed by the plaintiffs by investing in it. It is further contended by the plaintiffs that their possession over the suit land is continuous on and w.e.f. February, 1974. The plaintiffs were surprised on receipt of summonses from the office of A.C. 1st Grade, Theog, that defendant has filed an application under Section 123 of the H.P. Land Revenue Act contending therein that he is co-owner to the extent of half share. The plaintiffs were surprised on receipt of summonses from the office of A.C. 1st Grade, Theog, that defendant has filed an application under Section 123 of the H.P. Land Revenue Act contending therein that he is co-owner to the extent of half share. On ascertaining, it was unearthed that on the basis of aforesaid sale deed the plaintiffs were recorded owners to the extent of half share and another half share was recorded in the name of Begmu, sister of the defendant and after her death the defendant is recorded owner to the extent of half share. The defendant alleged to have inherited the estate of deceased Begmu. As per the plaintiffs, the defendant, by his act and conduct, is estopped to allege any right qua the suit land and they are also protected under the provisions contained in Section 43 of the Transfer of Property Act. 3. The defendant, by filing the written statement, resisted the claim of the plaintiffs and took preliminary objections viz., limitation and cause of action. On merits it is contended that the defendant had only sold half share in the suit land, as the other half share was belonging to Smt. Begmu. The defendant had denied that he had made false representation to sell whole of the suit land and it has also been denied that he professed that he had authority to transfer the entire land. In the year 1978-79 said Begmu died and the defendant succeeded her half share, as such, become co-owner in joint possession to the extent of half share with the plaintiffs. The defendant has further denied that possession of the entire land was delivered in favour of the plaintiffs at the time of execution of the alleged sale deed. The defendant subsequently filed an application for partition as a matter of right. The plaintiffs are not entitled for the benefit as provided under Section 43 of the Transfer of property Act, as alleged. Lastly the defendant prayed for dismissal of the suit. 4. The learned Trial Court on 21.06.2002 framed the following issues for determination and adjudication: “1. Whether the plaintiffs are liable to be declared as owners in possession of the suit land, as alleged. If so, its effect/ OPP. 2. If issue No. 1 is proved in affirmative, whether the plaintiff is entitled to the relief of permanent prohibitory injunction, as prayed for? OPP. 3. Whether the plaintiffs are liable to be declared as owners in possession of the suit land, as alleged. If so, its effect/ OPP. 2. If issue No. 1 is proved in affirmative, whether the plaintiff is entitled to the relief of permanent prohibitory injunction, as prayed for? OPP. 3. Relief.” After deciding issue No. 1 partly in favour of the plaintiffs and issue No. 2 against the plaintiffs, the suit was dismissed. The learned Trial Court has held that title to the extent of only half share has been passed to the plaintiffs. Against the said findings, the appeal was filed, which was dismissed by the learned Lower Appellate Court on 02.09.2006, hence the present regular second appeal, which was admitted for hearing on the following substantial question of law: “1. Whether the findings of the learned Appellate court below that the appellants are not entitled to be declared owners-in-possession of the suit land are contrary to the provisions of Section 43 of the Transfer of Property Act? 2. Whether the learned Courts below have ignored the material evidence and admissions of the defendant/respondent with regard to conveyance and handing over the possession of the entire land measuring 2 bighas and 12 biswas to the appellants consequent to sale deed, Ex. PC? 3. Whether the scope of Section 43 of the Transfer of Property Act is wholly inapplicable to the case of plaintiffs/appellants?” 5. Heard. The learned counsel for the appellant/plaintiffs has argued that the learned Courts below have failed to interpret the sale deed, Ex. PC, to its true perspective and also has not taken into consideration Section 43 of the Transfer of Property Act into consideration, as to whether half share has fallen to the share of the defendant, even this share also passes to the plaintiff when he has executed the sale deed qua the whole property. On the other hand, the learned counsel for the respondent/defendant has argued that only half share was sold by the defendant to the plaintiffs and there is no illegality in the judgments passed by the learned Courts below. 6. In order to appreciate the rival contentions of the parties, I have gone through the record in detail. 7. Sale deed, Ex. PC, stands duly proved on record. From the perusal of sale deed, Ex. PC, it is clear that the parties have read-over the contents thereof. 6. In order to appreciate the rival contentions of the parties, I have gone through the record in detail. 7. Sale deed, Ex. PC, stands duly proved on record. From the perusal of sale deed, Ex. PC, it is clear that the parties have read-over the contents thereof. From the close scrutiny of the entire evidence it is emanating that the defendant had even fraudulently or erroneously not represented that he had the authority to sell half share of Smt. Begmu to the plaintiffs. The possibility of delivering possession of the entire suit land to the plaintiffs cannot be ruled out, however, it is highly unimaginable that there was any act on the part of the defendant which gave an impression to the plaintiffs that defendant was authorized to sell the share of Smt. Begmu too. Thus, benefit of Section 43 of the Transfer of Property Act cannot be extended to the appellants/plaintiffs. 8. Shri Vijay Kumar (PW-1) has deposed that defendant had made a representation that he is authorized to sell the entire suit land to the plaintiffs, thus the plaintiffs purchased the suit land. This witness, in his cross-examination, has deposed that sister of the defendant, Smt. Begmu, had half share in the suit land and no authority had been given by Smt. Begmu to the defendant to sell her share. Shri Rama Nand (PW-2) has stated that the possession of the entire suit land is with the plaintiffs. 9. Defendant, Shri Anant Ram, while appearing in the witness-box has deposed that he had sold only half share of the suit land to the plaintiffs and possession of only that half share of the suit land was given to the plaintiffs. The defendant, in his cross-examination, while replying a suggestion, has admitted that the plaintiffs had sold 2.12 bighas, that is, entire suit land to the plaintiffs, but later on he has stated that he had sold only half share to the plaintiffs. On close scrutiny of cross-examination of the defendant, it is emanating that he admitted that he had sold the entire suit land to the plaintiffs, but later on he corrected himself. 10. On close scrutiny of cross-examination of the defendant, it is emanating that he admitted that he had sold the entire suit land to the plaintiffs, but later on he corrected himself. 10. From the above facts, it is clear that the findings, as recorded by the learned Courts below, suffers from no infirmity and the substantial question of law No. 1 is answered holding that the plaintiff is not entitled to any benefit under Section 43 of the Transfer of Property Act, as it was never represented by the defendant to the plaintiff that he can sell the other half share also, which belongs to his sister. Substantial question of law No. 2 is answered holding that sale deed, Ex. PC, shows that the defendant was owner of his half share, which he has sold, therefore, the document has been properly appreciated by the learned Courts below. As has been held above, while answering substantial question of law No. 1, in the facts of the present case, as the defendant never represented fraudulently that he has the authority to sell the share of his sister, therefore, the provisions of Section 43 of the Transfer of property Act are not attracted. Substantial question of law No. 3 is answered accordingly. 11. The net result of the above discussion is that the judgments and decrees passed by the learned Courts below are just, reasoned and after appreciating the facts, which have come on record, so no interference of this Court is required for. 12. In view of the above, the appeal being devoid of merits deserves dismissal and is accordingly dismissed. However, with no orders as to costs. The appeal stands disposed of, so also pending applications, if any.