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2016 DIGILAW 652 (HP)

Ved Prakash v. Tek Chand

2016-05-03

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The instant Regular Second Appeal has arisen against the impugned judgment of the learned District Judge, Kullu rendered in Civil Appeal No. 45/04, whereby the latter dismissed the appeal of the plaintiff/appellant and affirmed the judgment and decree of the learned trial Court. Standing aggrieved by the judgment of the learned District Judge, Kullu, the appellant herein has instituted the instant Regular Second Appeal before this Court for assailing it. 2. Briefly stated the facts of the case are that the plaintiff had instituted a suit for declaration to the effect that the sale deed No.990 of 9.7.1990 in respect of 1/3 share of land measuring 4-7-13 bighas out of the land comprised in Khata Khatauni No. 71/105 to 109, Khasra numbers 1519, 1563, 1573, 1835, 1291, 1318, 1324, 1963, 2371, 1927, 2366, 1292, 2306, 1328, 1800, 1833, 1847, 1914, 1814 kita 19, measuring 13-3-0 bighas by one Bhag Chand for consideration of Rs.50,000/- in favour of defendant No.1, Tek Chand, sale deed No. 1669 of 18.11.1996 of 10/11 share measuring 0-10-0 bigha out of the land comprised in Khata/Khatauni No. 80/118, khasra No.1265 by defendant No.1 Tek Chand in favour of defendant No.2 Lal Chand for consideration of Rs.40,000/-, sale deed No.6040 of 13.11.1989 of 1/11 share measuring 0-1-0 bigha out of the land comprised in khata/khatauni No.58 min/93 min, khasra No.1265 measuring 0-11-0 bigha, 2/3 share measuring 0-0-13 bigha out of land comprised in khata khatauni No. 59/95 khasra No.1324 measuring 0-1-0 bigha by Bhag Chand husband of Sevti (original defendant No.1, now stands deleted) in favour of defendant No.3 Mani Devi for consideration of Rs.1000/- and sale deed No.605 of 13.4.1989 of 4/10 share measuring 0-4-0 bigha out of the land comprised in khata khatauni No.59 min/95min khasra Nos. 1291, 1318 and 2371 kitta 3 measuring 10-10-0 bigha, by Bhag Chand in favour of defendant No.2 Lal Chand for consideration of Rs.2500/- situated in Phati Prini, Kothi Jagatsukh, Tehsil Manali, District Kullu (hereinafter referred as the suit land) are wrong, null and void and having no binding effect on the rights of the plaintiff. 1291, 1318 and 2371 kitta 3 measuring 10-10-0 bigha, by Bhag Chand in favour of defendant No.2 Lal Chand for consideration of Rs.2500/- situated in Phati Prini, Kothi Jagatsukh, Tehsil Manali, District Kullu (hereinafter referred as the suit land) are wrong, null and void and having no binding effect on the rights of the plaintiff. The said relief had been claimed by the plaintiff on the grounds that the suit land was ancestral property of the plaintiff and the same was inherited by Bhag Chand, husband of Sevti from his forefather as a result of which Bhag Chand had no legal right to sell the suit land without any legal necessity at a very low sale price in order to disinherit and harass the plaintiff being a legal representative. It was pleaded that the defendants were very clever persons and with malafide intention allured Bhag Chand for drinking wine under pressure dishonestly made him to agree to execute and register the said sale deeds in their favour. Hence, the said sale deeds were wrong and illegal. 3. The defendants contested the suit and filed written statement. The defendants in their written statement have taken the preliminary objections inter alia cause of action, locus standi, maintainability and mis joinder and non joinder of necessary parties. On merits, the averments made in the plaint were denied being wrong and incorrect. It was pleaded that the suit land was not ancestral property in the hands of Bhag Chand. The sale deeds were executed by said Bhag Chand out of his free will and volition and he had every right to sell the sit land. The plaintiff has got no right to challenge the alienation made by deceased Bhag Chand in favour of the defendants and the suit land was sold by deceased Bhag Chand for legal necessity. 4. The plaintiff/appellant filed replication to the written statement of the defendants/respondents, wherein, he denied the contents of the written statement and re-affirmed and re-asserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:- 1. Whether the plaintiff is entitled for the relief of declaration that sale deed No.990 dated 9.7.90, sale deed No. 1669 dated 18.11.1996 and sale deed No.6040 dated 13.4.89 be declared as null and void having no binding effect as alleged? OPP 2. Whether the plaintiff is entitled for the relief of declaration that sale deed No.990 dated 9.7.90, sale deed No. 1669 dated 18.11.1996 and sale deed No.6040 dated 13.4.89 be declared as null and void having no binding effect as alleged? OPP 2. Whether the suit is not maintainable as alleged? OPD 3. Whether the suit is not properly instituted and constituted, if so, its effect? OPD 4. Whether the suit is filed against a dead person Smt. Sevti Devi defendant No.1, if so, its effect? OPD 5. Whether the plaintiff has got no locus standi to file the present suit, as alleged? OPD. 6. Whether the suit is not properly valued for the purpose of court fee and jurisdiction, if so, its effect? OPD 7. Whether the suit is bad for non joinder and mis joinder of necessary parties, if so, its effect? OPD 8. Relief. 6. On an appraisal of the evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the appellant/plaintiff. In an appeal, preferred before the learned first Appellate Court by the appellant/plaintiff against the judgment and decree of the learned trial Court, the learned first Appellate Court dismissed the appeal. 7. Now the plaintiff/appellant has instituted the instant Regular Second Appeal before this Court assailing the findings recorded by the learned first Appellate Court in its impugned judgment and decree. When the appeal came up for admission on 24.12.2004, this Court, admitted the appeal instituted by the plaintiff/appellant against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether the findings recorded by the learned trial Court and affirmed by the first appellate court are dehors the evidence on the record and result of misreading of oral as well as documentary evidence? Substantial question of Law No.1: 8. One Bhag Chand, the vendor of the impugned sale deeds and one Nanak Chand were brothers. Both stand contended by the learned counsel for the plaintiff/appellant to acquire title to the suit land from their predecessors-in-interest. Substantial question of Law No.1: 8. One Bhag Chand, the vendor of the impugned sale deeds and one Nanak Chand were brothers. Both stand contended by the learned counsel for the plaintiff/appellant to acquire title to the suit land from their predecessors-in-interest. Thereupon the counsel for the plaintiff/appellant concerts with much vigour before this Court of the plaintiff along with the vendor of the sale deeds, validity whereof stands assailed, both holding the suit property from their successively preceding two male linear predecessors-in-interest rendering it hence to acquire or partake the character and element of ancestral or coparcenary property with the consequential effect of unless proof standing evinced of alienation of the suit property standing effectuated for the benefit of the estate or for legal necessity, evidence whereof when stands unadduced, to rather sustain the concomitant effect of the apposite sale deeds standing nullified. Both the Courts below had on an incisive appraisal of the evidence existing before them concluded of their occurring want of proof constituted in the apposite revenue record depictive of mutations of inheritance standing attested qua the suit property in favour of the male predecessors-in-interest of Bhag Chand and one Nanak Chand precedingly unbrokenly linearly upto two generations when each came to acquire title qua the suit property, hence ousted the contention of the plaintiff of the suit property carrying any trait, character or element of it standing construable to be ancestral or co-parcenary property besides ousted the contention of the learned counsel for the plaintiff/appellant of the apposite sale deeds standing not clothed with any protective mantle of legality for lack of display by apposite evidence of theirs standing effectuated for legal necessity or for the benefit of the estate. The conclusion as formed by both the learned Courts below for reasons recorded hereinafter do not warrant any interference. 9. This Court has delved into the entire evidence on record. Apart from oral evidence adduced at the instance of the plaintiff, there exists no apt and germane documentary evidence connoted by mutations of inheritance unbrokenly attested qua the suit property in favour of the preceding two linear male predecessors-in-interest or ancestors of both Nanak Chand and Bhag Chand. 9. This Court has delved into the entire evidence on record. Apart from oral evidence adduced at the instance of the plaintiff, there exists no apt and germane documentary evidence connoted by mutations of inheritance unbrokenly attested qua the suit property in favour of the preceding two linear male predecessors-in-interest or ancestors of both Nanak Chand and Bhag Chand. Absence of the aforesaid unbroken apposite mutations attested qua the suit property in favour of the immediately preceding two male lineal descendants to both Nanak Chand and Bhag Chand, constrain this Court to conclude of the suit property not gathering any aura of it being ancestral property. In sequel, the alienation of the suit property under the apposite sale deeds by Bhag Chand in favour of the defendants/respondents was valid as well as legal dehors the fact of it standing not proved to stand effectuated for legal necessity or benefit of the estate. Even though reliance was placed by the learned counsel for the appellant upon jamabandi Ex. C-1 and Jamabandi Ex.C-2. However, when the aforesaid jamabandis respectively rather depict of the suit property standing recorded in the ownership of Devi Sarwari and in the ownership of Umi, obviously no succor can stand drawn by the plaintiff/appellant for canvassing of the preceding two male linear predecessors-in-interest of Nank Chand and Bhag Chand unbrokenly holding it. 10. Even though Jamabandi Ex. C-3 pertaining to the year 1986-87 records the factum of the suit land standing owned and possessed by Bhag Chand. However, there is no depiction therein qua his acquiring along with Nanak Chand title to the suit land from their predecessors-in-interest in preceding two successive male linearity for concluding therefrom of the suit land partaking the character, trait and tinge of it being ancestral or co-parcenary property. 11. Be that as it may, it appears that the vendor of the sale deeds impugned before this Court had acquired title thereto as owner from his hitherto capacity as a non occupancy tenant therein under the owners of the suit property by automatic operation of Section 104 of the H.P. Tenancy Land Reforms Act. Necessarily hence when title to the suit property stood acquired by automatic statutory operation, the said manner of acquisition of title to the suit property by Bhag Chand renders it obviously being construable to be his self acquired property. Necessarily hence when title to the suit property stood acquired by automatic statutory operation, the said manner of acquisition of title to the suit property by Bhag Chand renders it obviously being construable to be his self acquired property. Consequently, when the suit property is his self acquired property, he was competent to alienate it by executing registered deeds of conveyance in favour of the respondents/defendants. 12. Dehors the above, a perusal of the rendition of the learned Sub Judge 1st Class, Kullu comprised in Ex. D-2, rendition whereof stood rendered in a suit for permanent prohibitory injunction instituted by defendant Tek Chand against the father of the plaintiff, one Allu Ram and one Bedu which suit came to be decreed also the appeal preferred therefrom before the learned District Judge sequeled its dismissal in affirmation to the findings of the learned trial Court comprised in Ex. D-2, moreover, with this Court under Ex. D-1 affirming the concurrently recorded findings against Allu by both the Courts below, constrains this Court to conclude of given the preeminent fact of the plaintiff through his father, who in the previous suit stood impleaded as a defendant omitting to thereat assail the sale deeds by instituting an apposite counterclaim to the plaint instituted by one Tek Chand, defendant herein, with an espousal therein of the relief as claimed therein by Tek Chand being ungrantable to him on the score of the sale deeds not holding validity on the facet as canvassed herein, especially when they stood executed prior to the institution of the suit, besides his omitting by instituting an apposite counter claim to the plaint of Tek Chand, defendant therein/plaintiff therein with a display therein of his staking a relief of restoration of the suit property, constrains this Court to conclude of his standing estopped to belatedly assail the sale deeds. The invocation of the principle of estopple against the plaintiff arouseable from his omitting to promptly at the apposite stage assail the sale deeds executed qua the suit property by Bhag Chand in faovur of the defendants stands anchored upon the provisions of Order II, Rule 2 of the Code of Civil Procedure (hereinafter referred to as the CPC), provisions whereof stands extracted hereinafter, inasmuch as with sub section (1) enjoining the father of the plaintiff, Allu while filing a written statement to the plaint instituted by Tek Chand, defendant herein/plaintiff therein, to embody therein an apposite counter claim including therein the entire cause of action encompassing also the validity of the sale deeds which thereat were in existence renders the omissions aforesaid on his part to beget the consequences enshrined in sub section (2), of his now standing baulked or thwarted subsequently qua an abandoned or an unventilated alive cause of action thereat, to now institute any claim thereto. Apart therefrom the plaintiff herein/defendant therein cannot now rejuvenate for the reasons aforestated a deadened cause of action. Order II, Rule 2, reads as under:- “2. Suit to include the whole claim.- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff my relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim.- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (2) Relinquishment of part of claim.- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs.- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.” Obviously, this Court is constrained to conclude of with the sale deeds belatedly standing impugned at the instance of the plaintiff though theirs standing executed prior to the filing of the suit for permanent prohibitory injunction by defendant Tek Chand against the father of the plaintiff/appellant, especially when he stood enjoined to file an apposite counterclaim along with his written statement to the plaint of Tek Chand, defendant herein and plaintiff therein, renders his omission to warrant an inference in consonance with sub section (2) to Order II, Rule 2 of the CPC of his standing subsequently estopped through the instant suit to re-agitate his claim in the manner he has concerted to. 13. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court as also by the learned trial Court are based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court as well as the learned trial Court have not excluded germane and apposite material from consideration. Accordingly, the substantial question of law is answered in favour of the defendants/respondents and against the plaintiff/appellant. 14. In view of above discussion, the present Regular Second Appeal is dismissed. In sequel, the judgments and decrees rendered by both the learned Courts below are maintained and affirmed. All pending applications also stand disposed of. No order as to costs.