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Himachal Pradesh High Court · body

2019 DIGILAW 1678 (HP)

Raj Kumar v. Rajinder Kumar

2019-11-08

SANDEEP SHARMA

body2019
JUDGMENT : Sandeep Sharma, J. Instant Regular Second Appeal under S.100 CPC, lays challenge to judgment and decree dated 2.8.2018 passed by learned District Judge, Sirmaur District at Nahan, H.P., in Civil Appeal No. 23-CA/13 of 2017, affirming judgment and decree dated 18.1.2017 passed by learned Civil Judge (Junior Division), Nahan, District Sirmaur, H.P. in Civil Suit No. 66/1 of 2015; whereby suit for declaration with consequential relief of possession having been filed by the appellants-plaintiffs (hereinafter, 'plaintiffs'), came to be dismissed. 2. Precisely, the facts as emerge from the record are that the plaintiffs filed a suit for declaration with consequential relief of possession in the court of learned Civil Judge (Junior Division), Sirmaur District at Nahan averring therein that the plaintiffs and defendant No.1 are the legal heirs of late Badri Parshad, who died on 23.4.2014 at Nahan, leaving behind plaintiffs and defendant No.1 as his successors. Wife of above named Badri Parshad, namely Kamla Devi also died on 9.10.2009, as such, property, owned and possessed by Badri Parshad, is to devolve upon the plaintiffs and defendant No.1 being his legal heirs. Plaintiffs further averred that the State of Himachal Pradesh is the owner of suit property as per copy of Jamabandi for the years 2011-12, whereas ownership stands transferred in favour of Badri Parshad by way of Patta through proforma defendant No. 5, as such, at the time of his death, deceased Badri Parshad was absolute owner on the basis of Patta of suit property. Plaintiffs further averred that plaintiff No.1 is the elder son of late Badri Parshad, who maintained plaintiffs No. 2 and 3 and defendant No.1 from his job and he being elder brother was providing/fulfilling all necessary and basic needs of plaintiffs Nos. 2 and 3 and defendant No.1, as such, entire earnings of his life were being spent on the welfare of defendant No.1 and plaintiffs No.2 and 3. Plaintiffs specifically averred in the plaint that plaintiff No.1 used to maintain late Badri Parshad and Kamla Devi. It is further averred in the plaint that Badri Parshad never executed any Will or any document during his life time, bequeathing his property in favour of defendant No.1. Plaintiffs specifically averred in the plaint that plaintiff No.1 used to maintain late Badri Parshad and Kamla Devi. It is further averred in the plaint that Badri Parshad never executed any Will or any document during his life time, bequeathing his property in favour of defendant No.1. Plaintiffs further averred that Badri Parshad was suffering from many ailments and was not in a position to speak properly, as such, alleged Will is a fraudulent document prepared behind the back of Badri Parshad, as such said Will is the result of fraud and misrepresentation and cannot be relied upon. Plaintiffs further averred that Badri Parshad was brought by defendant No.1 to give his surety in a criminal case before the court at Nahan and under the garb of such surety bond, alleged Will was got executed from Badri Parshad in a fraudulent manner. Plaintiffs also averred that at the time of execution of Will, Kamla Devi and Ram Khilawan were not alive and none of the respectable persons was associated in the execution of alleged Will. Plaintiffs also averred in the plaint that since after death of Badri Parshad, property was to devolve upon his legal heirs, they came to know about the alleged Will, but the same does not confer any right, title or interest over the defendant No.1 and the suit property alongwith other properties of deceased Badri Parshad is liable to be inherited by all the legal heirs i.e. plaintiffs and defendant No.1, in equal shares. Plaintiffs further averred that defendant No.1 under the garb of fraudulent Will has forcibly taken possession of the property of Badri Parshad and is going to dispossess the plaintiff from the suit property either by selling the same to others or by way of encumbrance. 3. Suit having been filed by the plaintiffs came to be resisted by defendants No.1 and 2 by filing a joint written statement, specifically denying therein that the plaintiffs alongwith defendant No.1 are the legal heirs of Badri Parshad and averred that the plaintiffs have no right, title or interest over the property of Badri Parshad, as the said property is/was self-acquired property of Badri Parshad. Defendant No.1 claimed that after the death of Badri Parshad, plaintiffs have not inherited the property of Badri Parshad including suit property and suit has been filed without any cause of action with a view to harass defendants No.1 and 2. Defendant No.1 claimed that after the death of Badri Parshad, plaintiffs have not inherited the property of Badri Parshad including suit property and suit has been filed without any cause of action with a view to harass defendants No.1 and 2. Defendants No.1 and 2 further averred that the deceased Badri Parshad executed a valid Will duly registered with Sub Registrar in his full senses, which was registered on 26.9.2006. 4. Proforma defendant No.5, by way of a separate written statement, also denied the averments contained in the plaint and averred that the Patta of the land was issued in favour of Badri Parshad. 5. On the basis of pleadings adduced on record by respective parties, learned trial Court framed following issues on 23.2.2016: "(1) Whether the plaintiffs are entitled to a decree of declaration to the effect that the Will bearing Regn. No. 95/2006 dated 26.9.2006 registered with the Sub Registrar, Nahan, qua the suit property is a null and void document and not binding upon the plaintiffs, as prayed for? OPP (2) Whether the plaintiffs are also entitled to the relief of permanent prohibitory injunction, as prayed for? OPP (3) Whether the suit is not maintainable in the present form, as alleged? OPD (4) Whether the plaintiffs have concealed the material facts and have not approached the Court with true facts, as alleged? OPD (5) Whether the plaintiffs have no locus standi to file the present suit, as alleged? OPD (6) Relief." 6. Record reveals that despite repeated opportunities, plaintiffs failed to lead any evidence, as such, their right to lead evidence was closed. Since no evidence was led on record by the plaintiffs, learned counsel for the defendants made a statement before the Court that the defendants do not intend to lead any evidence, as such, their right to lead evidence was also closed. 7. Learned trial Court, on the basis of the pleadings of the parties, dismissed the suit of the plaintiffs vide judgment and decree dated 18.1.2017. 8. Being aggrieved and dissatisfied with the aforesaid judgment and decree passed by learned trial Court, plaintiffs preferred an appeal before learned District Judge, Sirmaur at Nahan, which also came to be dismissed vide judgment and decree dated 2.8.2018, as a consequence of which, judgment and decree passed by learned trial Court came to be upheld. 8. Being aggrieved and dissatisfied with the aforesaid judgment and decree passed by learned trial Court, plaintiffs preferred an appeal before learned District Judge, Sirmaur at Nahan, which also came to be dismissed vide judgment and decree dated 2.8.2018, as a consequence of which, judgment and decree passed by learned trial Court came to be upheld. In the aforesaid background, plaintiffs have approached this court in the instant proceedings, praying therein to decree the suit, after setting aside judgments and decrees passed by both the learned Courts below. 9. Having heard learned counsel for the parties and perused the material available on record, this Court finds no illegality or infirmity in the impugned judgments and decrees passed by learned Courts below, which otherwise appear to be based upon proper appreciation of the pleadings adduced on record by respective parties. Though, in the case at hand, pleadings adduced on record reveal that the plaintiffs claimed that Will dated 26.9.2006, registered in the office of Sub Registrar, Nahan, in respect of suit property as detailed in Para-2 of the plaint, is null, void and not binding upon the plaintiffs, but no evidence worth the name ever came to be led on record on behalf of the plaintiffs in support of aforesaid claim. Similarly, plaintiffs claimed that the deceased Badri Parshad, who allegedly bequeathed his property in favour of defendant No.1, was suffering from many ailments and was not in a position to speak property, but there is not even an iota of evidence to substantiate aforesaid plea raised by the plaintiffs. This Court finds from the record that as many as seven opportunities were granted to the plaintiffs to lead evidence but to no avail, as such, learned Court below had no option but to decide the suit on the basis of averments contained in the plaint. 10. Needless to say that the onus to prove that Will dated 26.9.2006, allegedly executed by Badri Parshad, is the result of fraud and misrepresentation, was upon the plaintiffs and as such, they ought to have led on record cogent and convincing evidence in the shape of ocular as well as documentary evidence but, as has been observed herein above, plaintiffs have not been able to discharge said onus by leading evidence. Record reveals that order dated 9.8.2016, whereby evidence of the plaintiffs was closed by learned trial Court, was also laid challenge alongwith main appeal filed by the plaintiffs before first appellate Court. Plaintiffs alleged before first appellate Court that learned trial Court acted in a hot haste manner while closing evidence of the plaintiffs but it is quite apparent from the perusal of record that number of opportunities were granted to the plaintiffs to lead evidence, as such, it cannot be said learned trial Court acted in a hot haste manner, rather, learned trial Court, before closing evidence, afforded sufficient opportunities to the plaintiffs to prove their case. 11. Hence, no substantial question of law arises for determination in the preset appeal. 12. Now, it would be appropriate to deal with the specific objection raised by the learned counsel representing the plaintiff with regard to maintainability and jurisdiction of this Court, while examining concurrent findings returned by both the Courts below. Learned counsel for defendants No. 1 and 2, invited the attention of this Court to the judgment passed by Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015) 4 SCC 264 , wherein the Hon'ble Supreme Court has held: "16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for re-appreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained." (p.269) 13. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained." (p.269) 13. Perusal of the judgment, referred hereinabove, suggests that in exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. There can be no quarrel (dispute) with regard to aforesaid observation made by the Court and true it is that in normal circumstances High Courts, while exercising powers under Section 100 CPC, are restrained from re-appreciating the evidence available on record. 14. The Hon'ble Apex Court in Parminder Singh versus Gurpreet Singh, Civil Appeal No. 3612 of 2009, decided on 25.7.2017, has held as under: "(14) In our considered opinion, the findings recorded by the three courts on facts, which are based on appreciation of evidence undertaken by the three Courts, are essentially in the nature of concurrent findings of fact and, therefore, such findings are binding on this Court. Indeed, such findings were equally binding on the High Court while hearing the second appeal. 15. It is quite apparent from aforesaid exposition of law that concurrent findings of facts and law recorded by both the learned Courts below can not be interfered with unless same are found to be perverse to the extent that no judicial person could ever record such findings. In the case at hand, as has been discussed in detail, there is no perversity as such in the impugned judgments and decrees passed by learned Courts below, rather same are based upon correct appreciation of evidence as such, deserve to be upheld. 16. Consequently, in view of detailed discussion made herein above, I find no merit in the appeal at hand, which is accordingly dismissed. Judgments and decrees passed by both the learned Courts below are upheld. Pending applications, if any, are disposed of. Interim directions, if any, are vacated.