Research › Search › Judgment

Himachal Pradesh High Court · body

2021 DIGILAW 729 (HP)

Surender Pal v. Nikka Ram

2021-09-22

SANDEEP SHARMA

body2021
JUDGMENT : SANDEEP SHARMA, J. 1. Instant Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, lays challenge to judgment and decree dated 14.06.2005, passed by learned Additional District Judge, Ghumarwin, District Bilaspur, Himachal Pradesh in Civil Appeal No. 285/13 of 2004/1999, affirming the judgment and decree dated 17.8.1999, passed by learned Sub Judge, 1st Class, Ghumarwin, District Bilaspur, H.P. in case No. 201/1 of 1991, titled as Surender Pal etc. versus Nikka Ram etc., whereby suit for declaration and possession having been filed by the appellants (hereinafter referred to as the plaintiffs), came to be dismissed. 2. Precisely, the facts of the case as emerge from the record are that plaintiffs filed suit for declaration against the respondents (hereinafter referred to as the defendants), averring therein that the plaintiffs are the sons of defendant No. 2 and they being Hindus constituted a Joint Hindu Family. Plaintiffs claimed that plaintiff and defendant No. 2 are governed by Hindu law in matters of alienation of their ancestral joint Hindu family property. Plaintiffs claimed that suit land measuring 3 biswas, which is 1/120th share of land measuring 18-10 bighas bearing Khasra No. 1011/968/9356, Khata/Khatauni No. 202/249 min, situate in village Panol, Pargana Tiun, Tehsil Ghumarwin, District Bilaspur, H.P. (hereinafter referred to as the suit land) is ancestral joint Hindu family property of the plaintiffs and defendant No. 2. Plaintiffs specifically claimed in the suit that suit land was inherited by defendant No. 2 from his fore-father and as such, he could not sell the same without there being any legal necessity. Plaintiffs claimed that defendant No. 2 illegally sold the suit land in favour of defendant No. 1 by way of registered Sale Deed dated 29.12.1990 for consideration of Rs. 13,000/- without any legal necessity and as such, Sale Deed registered on 29.12.1990 in favour of defendant No. 1 qua the suit land be declared as null and void being totally illegal and they be handed over possession of the suit land. 3. Aforesaid suit having been filed by the plaintiffs came to be resisted by defendant No. 1, who purchased the suit land from defendant No. 2. Besides taking preliminary objections with regard to maintainability and valuation, defendant No. 1 claimed that neither plaintiff and defendant No. 2 constitute a joint Hindu Family nor the suit land is ancestral Joint Hindu family property. Besides taking preliminary objections with regard to maintainability and valuation, defendant No. 1 claimed that neither plaintiff and defendant No. 2 constitute a joint Hindu Family nor the suit land is ancestral Joint Hindu family property. Defendant No. 1 claimed before the court below that suit land is self acquired property of defendant No. 2 and he had already sold some plots out of the aforesaid land to some other persons and at no point of time challenge, if any, ever came to be laid by the plaintiff qua those sale deeds. Defendant also claimed that sale of suit land by defendant No. 2 in his favour was for legal necessity because defendant No. 2 after sale of suit land constructed house and three shops in the same Khasra number. 4. Learned trial Court on the basis of the pleadings adduced on record by the respective parties framed following issues:- 1. Whether the suit land was coparcenary and ancestral property as alleged? OPP. 2. Whether registered sale deed dated 29.12.1990 executed by defendant No. 2 in favour of defendant No. 1 is illegal, null and void as alleged? OPP. 3. Whether the plaintiffs are entitled for the relief of possession as prayed for? OPP. 4. Whether the suit is not maintainable? OPD. 5. Whether proper court fee has not been affixed? OPD. 6. Whether the plaintiffs are estopped to file the present suit by their act and conduct? OPD. 7. Whether the alleged sale deed was made for legal necessity as alleged? OPD-1. 8. Whether the suit land was personal property of defendant No. 2 as alleged? OPD-1. 9. Relief. 5. Learned trial Court on the basis of the pleadings as well as evidence adduced on record by the respective parties, dismissed the suit of the plaintiffs vide judgment dated 17.8.1999. Being aggrieved and dissatisfied with aforesaid judgment and decree passed by learned trial Court, plaintiffs filed an appeal under Section 96 CPC in the Court of learned Additional District Judge, Ghumarwin, District Bilaspur, H.P., which also came to be dismissed vide judgment dated 14.5.2005. In the aforesaid background, plaintiffs have approached this Court in the instant appeal, praying therein to decree his suit for declaration and possession after setting aside the judgments and decrees impugned in the instant appeal passed by Courts below. 6. In the aforesaid background, plaintiffs have approached this Court in the instant appeal, praying therein to decree his suit for declaration and possession after setting aside the judgments and decrees impugned in the instant appeal passed by Courts below. 6. Aforesaid appeal having been filed by the plaintiffs came to be admitted on 2.11.2005 on following substantial questions of law:- 1. Whether the sale deed proves that respondent/defendant No. 1 did not make any enquiry regarding the legal necessity, therefore, the sale is void and appellants/plaintiffs are entitled for possession of land? 2. Whether the grave prejudice has been caused to the appellants/plaintiffs when both the courts were laboring under the impression that legal necessity was to be proved by the plaintiffs, whereas legal necessity is to be proved by the defendant? 7. Since both the substantial questions of law, as reproduced hereinabove, are inter-connected and interrelated, they are taken up together for consideration. 8. Having heard learned counsel representing the parties and perused the material available on record vis-à-vis reasoning assigned by learned Courts below while dismissing the suit of the plaintiffs, this Court is unable to agree with Sh. B.P. Sharma, learned Senior Counsel representing the appellants-plaintiffs that learned Courts below have failed to appreciate the evidence in its right perspective, rather this Court finds that learned courts below have very meticulously dealt with each and every aspect of the matter. Since, there is no evidence, worth credence, led on record by the plaintiffs suggestive of the fact that defendant No. 1, Nikka Ram, who purchased suit land from defendant No. 2 was aware of the fact that portion of the suit land intended to be sold by defendant No. 2 is a joint Hindu family property, there was otherwise no occasion for him to conduct inquiry, if any, prior to purchase of property in question from defendant No. 1 with regard to legal necessity, if any, to sell the property by defendant No. 2. Admittedly, in the case at hand defendant No. 2, who happens to be father of plaintiffs, was a Karta of suit land, which was joint inter se parties, but as per entries in copy of jamabandi for the year 1986-87, Ex. P1, 1993-94 Ex. DW2/A and 1992-93 Ex. Admittedly, in the case at hand defendant No. 2, who happens to be father of plaintiffs, was a Karta of suit land, which was joint inter se parties, but as per entries in copy of jamabandi for the year 1986-87, Ex. P1, 1993-94 Ex. DW2/A and 1992-93 Ex. PA, defendant No. 2, Dina Nath was a owner of 28/370 shares in total land measuring 18-10 bighas bearing Khasra No. 1011/958/935 and as such, share of Dina Nath in this land was less than 1-10 bighas. It is not in dispute that before effecting sale of aforesaid portion of land in favour of defendant No. 1, Dina Nath had already sold the some share of his land in shape of plots to persons namely, Fithu, Kartar Singh, Mangar Singh, Amar Nath, Ramesh Chand and Duhla. As per entries in the revenue record, as taken note hereinabove, defendant No. 2, Dina Nath owned land less than 1-10 bighas as such, it was incumbent upon the plaintiffs to produce on record copies of revenue record suggestive of the fact that Dina Nath was owner of the land measuring 15 bighas. Since, no evidence be it oral or documentary ever came to be led on record on behalf of the plaintiffs suggestive of the fact that defendant No. 2, Dina Nath was having 15 bighas land and he was having sufficient income from his landed property, plea taken by the plaintiffs that Dina Nath was having 15 bighas land and he was having sufficient income from his landed property rightly came to be rejected by the courts below. 9. Careful perusal of Ex. P-2 i.e. sale deed reveals that it stood specifically recited/recorded in the sale deed that defendant No. 2, Dina Nath was in need of money for his domestic expenditure and as such, he was selling the suit land in favour of defendant No. 1. Since, there was specific recital made in the sale deed Ex. P2 that Dina Nath required money for his domestic expenditure, which fact otherwise stands substantiated with the statements of DW-1 and DW-3, whereby they have categorically stated that in the year 1990 defendant No. 2, Dina Nath got a plan of his house approved from NAC Ghumarwin and thereafter constructed a house on his land, there was otherwise no requirement, if any, for defendant No. 1 to conduct inquiry with regard to legal necessity. It is not in dispute that at the time of execution of sale deed plaintiffs were minor and they were residing with defendant No. 2. Since, house of defendant No. 2 was in dilapidated condition, he rightly with a view to repair the same sold the same to defendant No. 1. Since, it is not dispute that defendant No. 2 was a Karta of joint Hindu family and at the time of execution of sale deed plaintiffs were residing with him, he could definitely with a view to cause repair, if any, of his dilapidated house, could sell the some portion of the land. Since, factum with regard to dilapidated condition of house and reconstruction thereof after selling of suit land in favour of defendant No. 1 stands duly established on record, this Court finds no force in the submission of learned Senior Counsel representing the appellants-plaintiffs that there was no legal necessity for defendant No. 2 to sell the portion of the land. 10. PW-1, Satish Kumar deposed that they are Hindu by religion and are governed by Hindu law. He deposed that suit land is ancestral joint Hindu family property and defendant No. 2 was not competent to sell the suit land in favour of defendant No. 1 because the sale was without legal necessity. He further deposed that at the time of execution of sale deed they were having income of Rs. 7,000/- and 8,000/- from their 10-12 bighas landed property and they had also kept two buffaloes and as such were having sufficient means. This witness in his cross-examination admitted that suit land was purchased by his grandfather from Ram Singh. 11. PW-2, Shankar Singh also claimed that suit land is ancestral property of defendant Dina Nath and he was having sufficient income from his landed property as well as from buffaloes and as such, there was no legal necessity to sell the land to defendant No. 1. This witness stated that Dina Nath did not construct house after selling the suit land to defendant No. 1. 12. Defendant Nikka Ram while deposing as DW-1 claimed before the court below that he purchased the suit land from defendant No. 2 vide registered sale deed dated 19.12.1990 for a consideration of Rs. 13000/-. This witness specifically stated that after sale of land in his favour, defendant No. 2 Dina Nath constructed a house. 12. Defendant Nikka Ram while deposing as DW-1 claimed before the court below that he purchased the suit land from defendant No. 2 vide registered sale deed dated 19.12.1990 for a consideration of Rs. 13000/-. This witness specifically stated that after sale of land in his favour, defendant No. 2 Dina Nath constructed a house. This witness also deposed that Dina Nath sold other plots to various persons such as Surjan, Kartar Singh, Mangal Singh, Fithu, Amar Chand, Ramesh and Inderi, but plaintiffs never raised challenge to aforesaid sale deeds. This witness specifically denied that suit land is ancestral joint Hindu family property of defendant No. 2 and plaintiff. 13. DW-3, Roop Lal, Secretary N.A.C. Ghumarwin stated that defendant No. 2 Dina Nath got a plan of his house approved from N.A.C. Ghumarwin in the year 1990 and thereafter constructed a house on his land. 14. Close scrutiny of revenue records, especially entries made in Ex. PB and statements of PWs. 1 and 2 clearly suggest that suit land was previously owned by Arjun Ram, who had purchased the same from Ram Singh. Defendant No. 2 Dina Nath inherited the suit land from his father Arjun Ram, so admittedly the suit land was ancestral as far as plaintiff and defendant No. 2 is concerned. But as has been taken note hereinabove, entries in the copy of jamabandi for the year 1986-87 Ex. P-1, 1993-94 Ex. DW2/A and 1992-93 Ex. PA suggest that Dina Nath was owner of 28/370 shares in total land measuring 18-10 bighas bearing Khasra No. 1011/968/935, if it is so, then claim of the plaintiffs that defendant No. 2 being Manager and Karta of the suit land could not sell portion of property without there being any legal necessity, is otherwise not tenable. 15. Leaving everything aside, this Court finds that at no point of time plaintiffs were able to refute the contention of the defendant No. 1 that defendant No. 2 besides selling some portion of land to him also sold certain plots of land out of the suit and in favour of the persons named hereinabove, meaning thereby factum of sale by defendant No. 2 in favour persons named hereinabove out of the suit land stands duly admitted by the plaintiffs. If it is so, very character of the land which is claimed to be ancestral, changes to a personal property of a particular person. If it is so, very character of the land which is claimed to be ancestral, changes to a personal property of a particular person. It stands duly proved that after sale of suit land defendant No. 2 constructed pucca house on the land and thereafter plaintiffs, who at that relevant time were minor kept on living in that accommodation and as such, it is difficult to conclude that sale effected by defendant No. 2 in favour of defendant No. 1 by way of sale deed Ex. P2 was without any legal necessity. Defendant No. 2 sold small portion of 3 biswas in favour of defendant No. 1 for Rs. 13,000/- and thereafter constructed a house and as such, it stands duly proved that sale of 3 biswas made by Dina Nath in favour of the defendant No. 1 was for the benefit of state and for legal necessity. 16. Having perused the material available on record, this Court is fully satisfied and convinced that both the Courts below have very meticulously dealt with each and every aspect of the matter and there is no scope of interference, whatsoever, in the present matter. Substantial questions of law are answered accordingly. 17. Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264 , wherein it has been held as under: "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) 18. 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) 18. Aforesaid exposition of law clearly suggests that High Court, while excising power under Section 100 CPC, cannot upset concurrent findings of fact unless the same are shown to be perverse. In the case at hand, this Court while examining the correctness and genuineness of submissions having been made by the parties, has carefully perused evidence led on record by the respective parties, perusal whereof certainly suggests that the Courts below have appreciated the evidence in its right perspective and there is no perversity, as such, in the impugned judgments and decrees passed by both the Courts below. Moreover, learned counsel representing the appellants was unable to point out perversity, if any, in the impugned judgments and decrees passed by both the Courts below and as such, same do not call for any interference. 19. Consequently, in view of the detailed discussion made hereinabove, this Court sees no illegality and infirmity in the impugned judgments and decrees passed by courts below which otherwise appear to be based upon proper appreciation of evidence and as such, same are upheld. The present appeal fails and same is accordingly dismissed. Interim directions, if any, are vacated. All miscellaneous applications are disposed of.