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2017 DIGILAW 1249 (HP)

Raj Kumari v. Rattan Chand

2017-11-13

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. 1. The plaintiff's suit for rendition of a decree for vacant possession of the suit land being delivered to him by the defendants, stood, under concurrent pronouncements recorded thereon by both the learned Courts, below hence decreed. 2. Briefly stated the facts of the case are that the plaintiff has filed a suit for possession against the defendants as the suit land comprised in Khata No.52, Khatuani No. 95, Khasra Nos. 61, 62, 63 and 64, measuring 0-02-44 hectares, situated in Mohal Bankhandi, Mauja Tatahan Kalan, Tehsil Dehra, District Kangra, H.P., as per jamabandi for the year 1984-85, the plaintiff claimed to have succeeded the suit land through Sant Ram, the previous owner vide registered Will and has further pleaded and claimed that the possession of defendant No.1 over the suit land without any status. The plaintiff further pleaded that after the death of previous owner of the suit land one Sant Ram, his daughter Leela Devi filed a Civil Suit No.74 of 1986 by impleading present defendant No.1 Raj Kumar as one of the defendants along with the present plaintiff as defendant in the previous suit and the present defendant No.1 colluded with Smt. Leela Devi in the previous suit and as a result thereof the claim against Raj Kumar was withdrawn on 30.01.1991 in a suit titled as Leela Devi vs. Parvati, Civil Suit No.74/86 before Sub Judge, Dehra. The plaintiff further pleaded that Smt. Raj Kumari in the previous suit had filed written statement claiming to have built up house along with incomplete construction of three shops over the suit land on 12.05.1987 and the order of status quo over the land in dispute was passed on seeking such relief by the plaintiff against the present defendant No.1 and thereafter the present plaintiff had moved an application under Order 39,Rule 2-A of the CPC along with Order 39, Rule 7 of the CPC for appointment of commission in which the present defendant was found raising construction over the land in dispute. The plaintiff has further pleaded that the defendants have no right or interest over the suit land and thereby have sought possession of the suit land. 3. The plaintiff has further pleaded that the defendants have no right or interest over the suit land and thereby have sought possession of the suit land. 3. The defendants contested the suit of the plaintiff and have filed written statement, wherein, they have taken objections qua locus standi, limitation, valuation, jurisdiction and estoppel and the suit being stayed in view of the Civil Suit No.6/86. On merits, the defendants admitted the ownership of Sant Ram over the suit land, however, the defendants have denied the succession to the estate of Sant Ram by the plaintiff as the defendants have pleaded and claimed the Will dated 17.8.1984, executed by Sant Ram in favour of Leela Devi and Parvati Devi by denying the executing of any Will in favour of the plaintiff. The Will executed by Sant Ram in favour of the plaintiff stated to be under challenge in Civil Suit No. 6/86. The defendants have admitted the previous suit including defendant No.1 as party along with the plaintiff. However, the collusion as alleged by the plaintiff for withdrawal of the relief against defendant Raj Kumar has been denied, though it has been admitted that the previous suit was withdrawn against defendant Raj Kumari by Leela Devi. The defendants claimed titled to the suit land by way of adverse possession since April, 1946 as the suit land claimed to be given by Sant Ram to defendant No.1 for her residence and maintenance and thereafter, the husband of defendant No.1 built up the construction over the suit land including the house and shops. The defendants have pleaded and claimed in their written statement that Sant Ram was deserted by his wife about 44-45 years back and since then on persuasion of Sant Ram, defendant No.1 being his real sister started residing along with his husband with him. Thereafter Sant Ram had relinquished his ownership over the suit land in April, 1946 in favour of defendant No.1 and thereby defendant No.1 has claimed herself to be in continuous, peaceful, hostile and adverse possession of the suit land for more that the requisite period without any interference and her possession was incorporated and recorded during settlement of the suit land and thereby defendants have prayed for dismissal of the suit. 4. 4. The plaintiff/respondent herein filed replication to the written statement of the defendants/appellant herein, wherein, he denied the contents of the written statement and re-affirmed and reasserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiff is entitled for the possession of suit land, as alleged? OPP 2. Whether the defendants have become owners of suit land by way of adverse possession? OPD. 3. Whether the plaintiff has no locus standi to file the suit? OPD. 4. Whether the suit is liable to be stayed under Section 10 CPC? OPD. 5. Whether the suit is not properly valued for the purposes of court fee and jurisdiction, if so, what is proper valuation? OPD. 6. Whether the defendant is estopped by his act and conduct from filing the suit? OPD. 7. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff/respondent herein. In an appeal, preferred therefrom by the defendants /appellants, before the learned First Appellate Court, the latter Court dismissed the appeal AND affirmed the findings recorded by the learned trial Court. 7. Now the defendants/appellants herein, have instituted the instant Regular Second Appeal before this Court wherein they assail the findings recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission on 07.05.2007, this Court, admitted the appeal instituted by the defendants/appellants against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether the learned Appellate Court was correct in deciding the application under Order 41, Rule 27 of the Code of Civil Procedure before the decision of the appeal in violation of law laid down in State of Rajasthan vs. T.N. Sahani and others (2001)10 SCC 619 ? 2. Whether the judgments of the learned Courts below can be sustained when the issue with respect to relinquishment of the property has not been framed and decided by the trial Court although pleaded? 3. Whether the judgment in previous suit between the parties, in which the appellant had been given up as one of the defendants, can be used against his interest in the present suit? 4. 3. Whether the judgment in previous suit between the parties, in which the appellant had been given up as one of the defendants, can be used against his interest in the present suit? 4. Whether the impugned judgments and decree passed by both the courts below are in accordance with law when the plaintiff failed to prove his title qua the suit land? Substantial questions of Law No.1 and 4. 8. In a previous suit bearing Civil Suit No. 74 of 1986, one Leel Devi, had, (i) with respect to the suit land owned by her father one Sant Ram, the latter whereof is also the father of defendant No.5 therein, one Raj Kumari, on anvil of his testamentary disposition executed on 17.08.1984, in their favour by deceased Sant Ram, hence claimed, (ii) rendition of a declaratory decree with respect to the suit land therein, suit land whereof holds analogity vis-a-vis the extant suit land. 9. The defendants No.1 and 2 therein, one amongst whom, was, Rattan Chand, plaintiff herein, had also propounded, (i) a Will executed on 28.11.1985 by deceased Sant Ram in their favour. Upon previous suit bearing No. 74 of 1986, the learned Sub Judge 1st Class, Dehra under an pronouncement borne in Ex.P-10, recorded on 30.10.1992, (ii) validated the testamentary disposition recorded by deceased Sant Ram vis-a-vis Rattan Singh and Smt. Parvati, whereas, he invalidated the testamentary disposition purportedly executed by deceased Sant Ram in favour of Leela Devi and Raj Kumari. The pronouncement recorded by the learned Sub Judge 1st Class, Dehra, verdict whereof is borne in Ex.P-10, was (iii)) affirmed by the learned First Appellate Court, under the latter's pronouncement recorded in Civil Appeal No. 81 of 1992, pronouncement whereof is borne in Ex.P-11, (iv) whereafter this Court under verdict recorded in RSA No. 425 of 1993, verdict whereof is borne in Ex.P-15, affirmed the concurrent pronouncements recorded by both the learned Court below, upon, Civil Suit No.74 of 1986. Consequently, with judicial pronouncements attaining finality besides binding effect, with respect to the validity(ies) of the Will, executed, by deceased Sant Ram vis-a-vis one Rattan Chand, respondent herein, (v) thereupon, the judgments and decrees rendered by both the learned Courts below, warrant no, interference given theirs being anvilled upon the plaintiff herein provenly holding indefeasible title vis-a-vis the extant suit land. 10. 10. During, the pendency of Civil Appeal No. 44-D/2001, before the first Appellate Court, the aggrieved defendants/appellants herein, instituted an application, cast under the provisions of Order 41, Rule 27 of the CPC, wherein, they with the leave of the Court, concerted to adduce, the hereinafter extracted documents, into evidence:- “(a) Missal Hakiyat 1978-79 of khata No.53 of Tatahan Kalan, Tehsil Dehra, District Kangra, H.P. (b) Jamabandi 1966-67 of Khata No.5, of Tatahan Kalan. (c) jamabandi 1958-59 of Khata Nos. 22, 20 and 5 of Tatahan Kalan, Tehsil Dehra, District Kangra, H.P. (d) jamabndi 1953-54 of Khata No. 2, 11,12,13, 16 and 19 of Tatahan Kalan, Tehsil Dehra (e) Jamabandi 1945-46 of khata No.19 of Tatahan Kalan (f) Jamabandi 1913-14 of Khata No.3 of Tatahan Kalan (f) Mutation No.36 dated 14..4.1944” The aforesaid documents, as, were with the leave of the Court, hence, assayed to be adduced into evidence, were meant for purportedly proving the factum of the suit property, being not owned and possessed by Sant Ram, the predecessor-in-interest of the plaintiff, (i) rather it being owned by one Sant Ram son of Shiva. It was averred therein, of, the aforesaid documents (ii) being not, despite exercise of due diligence, hence, procureable earlier also rather with theirs being just and essential for enabling the Court to arrive at a correct decision, (iii) with, respect to the identity of the predecessor-in-interest of the plaintiff, namely, one Sant Ram, holding compatibility, vis-a-vis the reflections therein, wherein, he is purportedly reflected to be the son of Shiva, (iv) hence, the apposite leave being affordable vis-a-vis them. The aforesaid application was contested by the plaintiff AND prior to the rendition of a verdict, upon, the apposite first appeal, it was dismissed by the learned Appellate Court. 11. The learned counsel appearing for the appellant, has contended, on anvil of a decision of the Hon'ble Apex Court, rendered in a case titled as State of Rajasthan vs. T.N. Sahani and others (2001)10 SCC 619 , the relevant paragraph No.4 whereof, reads as under: “4. 11. The learned counsel appearing for the appellant, has contended, on anvil of a decision of the Hon'ble Apex Court, rendered in a case titled as State of Rajasthan vs. T.N. Sahani and others (2001)10 SCC 619 , the relevant paragraph No.4 whereof, reads as under: “4. It may be pointed out that this Court as long back as in 1963 in K.Venkataramiah v. Seetharama Reddy ( AIR 1963 SC 1526 ) pointed out the scope of un-amended provision of Order 41, Rule 27(c) that though there might well be cases where even though the court found that it was able to pronounce the judgment on the state of the record as it was, and so, additional evidence could not be required to enable it to pronounce the judgment, it still considered that in the interest of justice something which remained obscure should be filled up so that it could pronounce its judgment in a more satisfactory manner. The is entirely for the court to consider at the time of hearing of the appeal on merits whether looking into the documents which are sought to be filed as additional evidence, need be looked into to pronounce its judgment in a more satisfactory manner. If that be so, it is always open to the court to look into the documents and for that purpose amended provision of Order 41, Rule 27(b) CPC can be invoked. So the application under Order 41, Rule 27 should have been decided along with the appeal. Had the Court found the documents necessary to pronounce the judgment in the appeal in a more satisfactory manner it would have allowed the same; if not, the same would have been dismissed at that stage. But taking a view on the application before hearing the appeal, in our view, would be inappropriate. Further the reason given for the dismissal of the application is untenable. The order under challenge cannot, therefore, be sustained. It is accordingly set aside. The application is restored to its file. But taking a view on the application before hearing the appeal, in our view, would be inappropriate. Further the reason given for the dismissal of the application is untenable. The order under challenge cannot, therefore, be sustained. It is accordingly set aside. The application is restored to its file. The High Court will now consider the appeal and the application and decide the matter afresh in accordance with law.” (i) wherein it is expostulated, of, the Appellate Court concerned, being enjoined to make a pronouncement upon an application, cast under the provisions of Order 41, Rule 27 of the CPC in contemporaneity, with its, pronouncing a decision upon the apposite appeal, laid there before, (ii) whereas, in contradiction, therewith, the learned First Appellate Court, prior to its pronouncing a verdict upon the apposite Civil Appeal, its making a decision upon the aforesaid application, renders the aforesaid mandate constituted therein, to be infringed, (iii) thereupon, the verdict impugned before this Court necessitating interference. In making reliance upon the aforesaid verdict, the learned counsel appearing for the appellants herein, is obviously misled, for reasons (a) the aforesaid pronouncement rendered by the Hon'ble Apex Court, arising from an order recorded by the High Court of Judicature, Rajasthan, upon a application filed before it under the provisions of Order 41, Rule 27 of the CPC, obviously, the pronouncement of an order thereon, occurred during the pendency of the apposite appeal before it. However, distinguishly therefrom, in the instant case, (iv) the aggrieved by instituting, before this Court Civil Revision Petition bearing No. CR 312 of 2003, concerted to impeach, its validity, yet the aforesaid endeavour of the aggrieved did not fully succeed, given, this Court, upon, the aforesaid Civil Revision Petition, only reserving liberty vis-a-vis the aggrieved, to contest the aforesaid purported illegality, at an appropriate stage. (v) Even if, assumingly, the aforesaid infirmity grips, the order made by the learned First Appellate Court, upon, an application preferred before it, under the provisions of Order 41, Rule 27 of the CPC, on anvil of its infracting, the decision rendered by the Hon'ble Apex Court in T.N. Sahani's case (supra), (vi) with a concomitant effect, of its, purportedly vitiating the judgment and decree impugned before this Court, nonetheless this Court would refrain to interfere with the impugned judgment and decree nor hence the aforesaid espousal would be amenable to acceptance by this Court (i) unless the further mandate occurring in the decision delivered by the Hon'ble Apex Court, entailing the Court concerned to record valid/tenable reasons thereon is also evidently infringed or theirs being palpably frail or untenable, fraility whereof arising from theirs not falling in tandem therewith (ii) for gauging the tenability, of the reasons assigned by the learned First Appellate Court, for its declining relief to the aggrieved, upon, an application instituted before it under the provisions of Order 41, Rule 27 of the CPC, it is imperative to allude to the pleadings, since therefrom it would be ascertainable whether (iii) the documents concerted to be adduced into evidence being just and essential, for enabling the Court concerned, to firmly decide the controversy erupting inter se the parties at contest; (iv) concomitantly, whether, the refusal of relief, hence, precluding the learned First Appellate Court, from, clinchingly resting the controversy, whereupon the parties at contest were engaged. However, an allusion to the pleadings, existing, in the written statement furnished by the defendants, to apposite Civil Suit No. 104 of 1991, unveil of (a) theirs therein, not, making any espousal, holding, any compatibility with the averments borne in the application cast under the provisions of Order 41, Rule 27 of the CPC; (b) contrarily, with the plaintiff while stepping into the witness box, during, the course of her cross-examination, acquiescing to the affirmative suggestion put to her, by the counsel for the defendants, of the name of father of Sant Ram being Siba and the name of her father being Suba, (c) begets the sequel, of, the defendants conceding tot he factum of the name of the father, of Sant Ram being Siba and the name of the father of the plaintiff herein being Suba, with the further sequel of (d), hence the application, cast under the provisions of Order 41, Rule 27 of the CPC, with, averments therein, of, the documents in respect of whose tenderings into evidence, the leave of the Court was sought, though, holding reflections disclosing purported inter se incompatibility vis-a-vis-a-vis the identity of the predecessor-in-interest of the plaintiff vis-a-vis the reflections borne therein, all effects thereof, in their entirety being effaced besides subsumed and (e) thereupon, rather it being merely a contrivance for prolonging the trial of the suit. 12. Dehors the above (i) absence of pleadings in the aforesaid aspect, being reared in the written statement of the defendants, whereafter no issue apposite in respect thereto stood struck, could also not have enabled the Court concerned, to grant the apposite leave to the aggrieved, for adducing the documents concerned, into evidence, (ii) especially when obviously they were neither just, nor essential for deciding any controversy, given its not manifesting itself in the respective pleadings nor reiteratedly any issue in respect thereto warranted its being hence struck. Consequently, any reliance placed by the learned counsel appearing for the appellant upon T.N. Sahani's case (supra) is misplaced. Accordingly, both the substantial questions of law are answered in favour of the respondent and against the appellant. Substantial question of law No.2. 13. Consequently, any reliance placed by the learned counsel appearing for the appellant upon T.N. Sahani's case (supra) is misplaced. Accordingly, both the substantial questions of law are answered in favour of the respondent and against the appellant. Substantial question of law No.2. 13. The learned counsel appearing for the appellant has contended with vigour before this Court that absences of the learned Courts, to frame an issue with respect, to, the relinquishment of the suit property and their concomitant, failure to render findings thereupon, hence encumbering grave injustice upon the defendants. However, before determining the tenacity of the aforesaid espousal, it is imperative to allude, to the contention in respect thereto, reared by the defendants in their apposite written statement, contention whereof is comprised in paragraph No.3 of the written statement which reads as under:- “3. Denied completely, there was no order of status quo passed by the Court against the replying defendants. Defendants are in adverse possession over the suit land since April 46 as this land along with other land was given by Sh. Sant Ram to defendant No.1 for her residence and maintenance. Thereafter the husband of defendant No.1 had built his house etc; in the suit land and shops also. Defendant No.4 had laid the slab on that incomplete construction. Sat Ram was deserted by his wife about 44/45 years back and since then on the persuasion of the deceased, defendant No.1, who is the real sister of Sh. Sant Rm, along with her husband started living with him and looking after his requirements. As Sh. Sant Ram had relinquished his ownership of the suit land in April, 46 in favour of defendant No.1, she i.e. defendant No.2 is in continuous, peaceful, hostile and adverse possession for more than the requisite period and as such her possession has matured into ownership. As Sh. Sant Ram had relinquished his ownership of the suit land in April, 46 in favour of defendant No.1, she i.e. defendant No.2 is in continuous, peaceful, hostile and adverse possession for more than the requisite period and as such her possession has matured into ownership. All other averments are denied and the plaintiff is required to prove them.” Nonetheless, an allusion to the afore extracted apt portion of the written statement, unveils (i) of though, a contention existing therein, of one Sant Ram, relinquishing his ownership vis-a-vis the suit land qua defendant No.1, yet thereafter, in the very same sentence, there is a further contention, of defendant No.1 being in continuous and peaceful possession of the suit land since, April, 1946 upto now, hence, much beyond the statutorily enjoined period, for thereupon her possession thereof, with, a purported animus possedendi, being hence construable to, now at, mature into absolute ownership. The prior thereto contention, occurring, in an alike sentence, of, hence a relinquishment being made by Sant Ram vis-a-vis defendant No.1 in April, 1946, is hence not an assertion segregable from the plea in succession thereof, of adverse possession, rather both pleas are naturally entwined, (i) whereupon, title vis-a-vis the suit land is asserted by the defendants. Consequently, with an apposite issue with respect to the defendants acquiring ownership by way of adverse possession, vis-a-vis suit property, being hence struck, also evidence thereon standing adduced, (ii) importantly also when tenacious findings stand concurrently recorded by both the learned Courts below, for repelling the aforesaid assertion, (iii) thereupon, with the defendants, not, contesting the disaffirmative findings concurrently recorded by both the learned Courts below, upon the apposite struck issue, of the defendants acquiring title to the suit property by way of adverse possession, (iv) rather reiteratedly with the aforesaid plea being canvassed by the defendants concerned, in entwinement, with the purported relinquishment made by one Sant Ram vis-a-vis defendant No.1, rendered any striking of any separate issue in respect thereto, being wholly unnecessary nor any findings were returnable thereon, given its being tacitly abandoned, (v) given the uncontested disaffirmative findings rendered upon the apposite issue, of adverse possession. Consequently, substantial question of law No.2 is answered in favour of the respondents and against the appellant. Substantial question of law No.3. 14. In the previous suit, instituted by Leela Devi, one Raj Kumari, was impleaded as defendant No.5. Consequently, substantial question of law No.2 is answered in favour of the respondents and against the appellant. Substantial question of law No.3. 14. In the previous suit, instituted by Leela Devi, one Raj Kumari, was impleaded as defendant No.5. However under a statement recorded on 31.01.1991 by the counsel, for the plaintiff, the claim of the plaintiff Leela Devi, in her previous suit was vis-a-vis defendant No.5 hence given up. The aforesaid Raj Kumari has been impleaded as a co-defendant, now, in the instant suit. She evidently is the sister of one Leel Devi, the plaintiff in the earlier suit. The aforesaid Leela Devi, as, borne on a reading of the apposite order recorded by the learned trial Judge, hence abandoned her claim vis-a-vis the aforesaid Raj Kumari. Since, then upto now, the aforesaid Raj Kumari omitted to contest the making of the aforesaid order, by the trial Judge, even despite hers being represented by counsel. Consequently, her omission to assail the apposite order recorded by the learned Sub Judge 1st Class, in earlier suit bearing C.S No. 74 of 1986, whereby, she hence conceded to the request of, one Leela Devi of the latter being permitted to abandon her claim reared therein against defendant No.5, Raj Kumari, also thereupon estops the latter from contesting the instant suit. Moreover, with Leela Devi in the earlier suit, failing to establish, her claim in respect of hers acquiring title to the suit property, under, a testamentary disposition executed by Sant Ram in her favour, (i) rather when in her earlier suit, the aforesaid testamentary disposition, has been under conclusive judicial verdicts, hence, invalidated, besides when the aforesaid Raj Kumari impleaded as a co-defendant therein, has been meted a full opportunity to contest the plaintiff's suit, (ii) thereupon, infirmity, if any, in the apposite order of the learned Sub Judge 1st Class, Dehra pronounced in C.S. 74 of 1986 on 31.01.1991, whereby, plaintiff Leela Devi was permitted to abandon her claim vis-a-vis Raj Kumari, is of no worth nor it renders the, thereon recorded binding judicial pronouncements whereby the Will propounded therein, by her, stood invalidated, to beget any stain, even vis-a-vis Raj Kumari, who also on anvil thereof, claimed a right upon the suit property. 15. 15. In aftermath, it is held that the binding conclusive judgments pronounced in the previous suit, whereby, the testamentary disposition propounded by one Leela Devi, stood, declared null and void, is to be concluded to be binding, even upon, Raj Kumari, dehors Leela Devi, plaintiff in the earlier suit being permitted by the learned Sub Judge 1st Class, Dehra to abandon her claim vis-a-vis Raj Kumari. Accordingly, substantial question of law No.3 is answered in favour of the respondents and against the appellants. 16. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court as well as 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. 17. In view of the above discussion, the instant appeal is dismissed and the impugned judgments and decrees rendered by both the learned Courts below are affirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs. Records be sent back.