Research › Search › Judgment

Himachal Pradesh High Court · body

2019 DIGILAW 346 (HP)

Nand Lal v. Girja Nand

2019-03-29

SURESHWAR THAKUR

body2019
JUDGMENT : Sureshwar Thakur, J. The instant appeal is directed, against, the concurrently recorded verdicts by both the learned Courts below, whereby, the plaintiff's suit for rendition, of, a decree for permanent prohibitory injunction qua the suit khasra number(s), was, hence decreed. 2. Briefly stated the facts of the case are that the plaintiff is in actual physical possession of the suit land where he has planted apple orchard. Old Khasra number of the suit land prior to settlement was 78 and recorded in physical possession of father of the plaintiff and his uncle. The defendant has no right, title and interest in the suit land. Due to enmity on account of civil suit filed by the plaintiff against the defendant qua a house, he is threatening to dispossess the plaintiff from the suit land without any right, title or interest. 3. The defendant contested the suit and filed written statement, wherein he has pleaded that the father of the defendant Chandu Lal, vide sale deed of 8.3.1967, purchased land borne in Khasra Nos. 62, 68, 71, 73, 77 and 158, measuring 12-11 bhighas, along with double storeyed house for Rs.6000/- from Hira and Parma Nand, predecessor-in-interest, of the plaintiff. Parma Nand and Hira at that time also entered into an agreement of sale of Khasra No.78 with Chandu Lal for consideration of Rs.600/-, which was paid. Chandu Lal was put in possession of Khasra No.78, i.e. the suit land under the agreement dated 28.4.1975. They had agreed to covey title to Chandu Lal by executing a sale deed after obtaining necessary permission. After death of Chandu Lal defendant is in possession of the suit land since 1976. So, possession of the plaintiff qua the suit land is denied. He claimed having planted apple orchard Revenue entries to the contrary are wrong. Plaintiff and his predecessor had been acknowledging defendant to be owner of the suit land. In the alternative defendant pleaded qua theirs having acquired title to the suit land by way of adverse possession. 4. The plaintiff filed replication to the written statement of the defendant, 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. 4. The plaintiff filed replication to the written statement of the defendant, 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 to the relief of permanent prohibitory injunction, as prayed for? OPP 2. Whether Shri Parma Nand and Hiru, the predecessor-in-interest of the plaintiff had entered into an agreement to sell the sit land in favour of the father of the defendant, vide agreement dated 28.4.1975 as alleged, if so its effect? OPD. 3. Whether the suit in the present form is not maintainable? OPD. 4. Whether the plaintiff is estopped by his act or conduct from filing the present suit, as alleged? OPD. 5. 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 defendant/appellant herein, 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 defendant/appellant(s) herein, has instituted the instant Regular Second Appeal, before, this Court, wherein he assails the findings, recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, on 14.8.2006, this Court, admitted the appeal instituted by the defendant/appellant(s) against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial question of law:- 1. Whether the two courts below have committed serious illegality in decreeing the claim of the plaintiff, ignoring the fact that their predecessor s had executed an agreement Ex.DA, for sale of the suit property to the predecessor of the defendant and had also delivered the possession after receiving the amount of consideration in full? Substantial question of Law No.1: 8. Ex. DA, stood executed inter se predecessors-in-interest of the defendant, and, the plaintiff, and, the execution of the afore exhibit, rather stands cogently proven. Substantial question of Law No.1: 8. Ex. DA, stood executed inter se predecessors-in-interest of the defendant, and, the plaintiff, and, the execution of the afore exhibit, rather stands cogently proven. Though, a perusal thereof underscores, (a) the trite factum qua hence sale consideration, rather being enunciated therein, (b) besides, in contemporaneity, vis-a-vis, its execution, possession of the suit property being delivered to the predecessor-in-interest of the defendant, by the predecessors-in-interest of the plaintiff, (c) yet the execution of a registered deed of conveyance, vis-a-vis, the khasra numbers disclosed therein, being deferred, till the predecessors-in-interest of the plaintiff, one Parma Nand, and, one Hira, earlier, vis-a-vis, its execution, being recorded as non-occupancy tenants, vis-a-vis, the suit khasra numbers, hence, being conferred, the apt proprietary rights, by an order, of, the consolidation officer concerned. 9. The afore referred enunciation(s), as, borne in Ex.DA, execution whereof stands cogently proven, was, dispelled by the learned First Appellate Court, (a) upon, its making an allusion to Ex. DG, jamabandi appertaining to the suit khasra numbers, relating to the year 1970-71, in rent column whereof, the possession of afore Parma Nand, and, of, Hira stands recorded, on account of exchange, (b) thereupon, it concluded that the afore predecessors-in-interest of the plaintiffs, rather not being non occupancy tenant(s), vis-a-vis, the suit khasra numbers, contrarily, theirs holding title, as, owners thereof. The effects thereof, are, that the afore enunciation(s) borne in Ex.DA, on anvil whereof, it stands covenanted, that, hence the deferment of execution of, a, registered deed of conveyance, rather being imperative, obviously being construable to be bonafidely made, and, also lose for all relevant purposes, hence, its/their efficacy(ies). However, when through the afore findings recorded by the learned First Appellate Court, qua the afore facet, would ably empower the defendant to claim rendition, of, a decree for specific performance of contract, against the plaintiff, decree whereofs yet remain unclaimed, (c) nonetheless, dehors the afore omission, of, rearing of the afore claim, by the defendant(s), (d) does not disempower them/him, to validate their possession, vis-a-vis, the suit khasra numbers, as, acquired therethrough. Significantly, with the contested fact, in the instant suit, cast, for rendition of a decree for permanent prohibitory injunction, is, obviously centered, upon, (e) the plaintiff or the defendant, rather holding possession, vis-a-vis, the suit khasra numbers. Significantly, with the contested fact, in the instant suit, cast, for rendition of a decree for permanent prohibitory injunction, is, obviously centered, upon, (e) the plaintiff or the defendant, rather holding possession, vis-a-vis, the suit khasra numbers. Both the learned courts below relied upon the reflections, borne in the column of possession, borne in the relevant jamabandi, and, as appertaining to the suit land, (f) AND with the plaintiff being recorded therein, to hence hold possession, of the suit khasra numbers, hence proceeded to conclude, that, the plaintiff, is, in physical possession, of, the suit land, (g) importantly, when the adduced oral evidence hence metes corroboration thereto, thereupon, the afore presumption, not only, remaining unrebutted rather acquiring conclusivity. However, for the reasons to be ascribed hereinafter, the afore conclusions, are, unwarranted (h) with Ex.DA being cogently proven, (i) with clear echoings borne therein qua, in contemporaneity, vis-a-vis, its execution, rather possession being delivered to the predecessor-in-interest, of defendant by the predecessors-in-interest, of the plaintiff, (j) thereupon, the afore recorded recitals in Ex.DA, rather hold unrelenting vigour, and, also oust the receipt of oral evidence in variance or in digression thereto, (k) emphasizingly, when, the mandate of the provisions borne in Sections 91 ad 92 of the Indian Evidence Act, provisions whereof stand extracted hereinafter, voice explicit statutory contemplations, that, upon the recorded recitals borne, in, a document being proven, thereupon, any oral evidence, in, digression thereto, rather not holding any probative vigour. “91. “91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of documents.—When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence1 shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.—When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained." Exception 1.— When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved. Exception 2.—Wills [admitted to probate in [India]] may be proved by the probate. 92. Exception 2.—Wills [admitted to probate in [India]] may be proved by the probate. 92. Exclusion of evidence of oral agreement.— When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its term.” (l) corollary whereof, is, even if oral evidence stands adduced by the plaintiff, vis-a-vis, his holding possession on the suit land, the afore evidence, is rather, discardable, besides also the afore recitals, borne in Ex.DA also benumbing or blunting the efficacy, of, the presumption of truth carried by the reflections, borne in the column of possession, of, the relevant jamabandi, (m) with a further sequel, that, the afore potent evidence, hence, rebutting all the afore reflections, and, rather Ex.DA, alone garnering the relevant efficacy, and, probative vigour, and, in aftermath, in the learned courts below rather not meteing adequate reverence thereto, rather hence committing, a, gross illegality, and, impropriety. Conspicuously, when no demarcation report with apt underlinings qua therein the plaintiff holding possession, vis-a-vis, the suit khasra numbers, hence, exists on record. 10. The above discussion, unfolds, that the conclusions as arrived by both the learned Courts below, being not based, upon a proper and mature appreciation of evidence on record. While rendering the findings, both the learned Courts below have excluded germane and apposite material from consideration. Accordingly, the substantial question, of law is answered in favour of the defendant/appellant, and, against the plaintiff/respondent herein. 11. In view of the above discussion, the instant appeal is allowed, and, judgments and decrees impugned before this Court are set aside. Consequently, the plaintiff's suit is dismissed. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs. Records be sent back forthwith.