JUDGMENT : CMP No. 63 of 2006 By way of instant application filed under Order XLI, rule 27 CPC, appellant has sought to place on record copy of mutation No. 6309, dated 21.2.2001 (Annexure A-1) and copy of Jamabandi for the years 2000-2001 (Annexure A-2). Appearing respondents have filed reply to the application, opposing the prayer made on behalf of the appellant(s). 2. From the pleadings of the parties, this court finds that the document sought to be placed on record are germane to the decision of the instant Regular Second Appeal as such, same are ordered to be taken on record. Application stands accordingly disposed of. RSA No. 8 of 2006 3. By way of instant Regular Second Appeal filed under S.100 CPC, challenge has been laid to judgment and decree dated 29.12.2005 passed by learned District Judge, Kullu, District Kullu, Himachal Pradesh in Civil Appeal No. 81/2005, whereby judgment and decree dated 12.8.2005 passed by learned Civil Judge (Senior Division), Lahul & Spiti at Kullu, Himachal Pradesh in Civil Suit No. 71/2002, has been partly modified. 4. Precisely, the facts of the case, as emerge from the record, are that respondents Nos. 1 to 5-plaintiffs (hereinafter, ‘plaintiffs’), filed a suit for declaration with consequential relief of permanent prohibitory injunction against defendant No.1 Ram Lal, proforma respondents Nos. 3 and 4, and the appellant-defendant No. 2 (hereinafter, ‘defendant No.2). During the pendency of the appeal before this court, the original appellant/defendant No.2 Tot Ram, died and now his legal representatives are pursuing the appeal. 5. Plaintiffs claimed before learned trial Court that defendant No.1 Ram Lal and proforma respondents Nos. 6 to 8 are entitled to be declared as co-owners-in-possession of 1/8th share measuring 2-11-0 Bigha out of total land comprised in Khata Khatauni No. 961/1552, Khasra Nos. 29, 30, 31, 188, 222, 225, 257, 318, 327, 334 and 341 Kita-11, measuring 20-8-0 Bigha, 1/8th share measuring 0-5-0 Bigha out of land comprised in Khewat Khatauni No. 962/1554, measuring 2-1-0 Bigha, 795/6330 shares measuring 0-13-0 Bigha out of land comprised in Khewat Khatauni 963/1554, Khata No. 13, measuring 5-6-0 Bigha, as described in the Jamabandi for the years 1995-96, situate in Phati and Kothi Kais, Tehsil and District, Kullu, Himachal Pradesh (hereinafter, ‘suit land’) and Will dated 3.8.1995 (Ext. D-A), set up by defendant No.1 is forged and fictitious and as such, the entries showing defendant No.1 as owner-in-possession are wrong and illegal and further that the sale deed No. 1699 dated 4.12.2001 executed by defendant No.1 in favour of defendant No.2 is invalid and illegal, and the defendants be restrained from making any sort of interference in the ownership and possession of the plaintiffs and proforma defendants over the suit land. It is averred by the plaintiffs that Shri Thakur Dass died intestate on 14.8.1990 leaving behind him, plaintiffs, defendant No.1 and proforma defendants Nos. 3 and 4, as his only legal heirs, who are entitled to succeed to the suit land in equal shares. It is further averred that the mutation No. 625, dated 13.12.1996 on the basis of intestate succession was sanctioned in favour of plaintiffs, defendant No.1 and proforma defendants, in equal shares but defendant No.1, in connivance with the Scribe and the marginal witnesses, set up a forged and fictitious Will dated 3.8.1995 (Ext. DW-3/A), allegedly executed by Thakur Dass in his favour and on the basis of said forged and fictitious Will, in connivance with the revenue officials, got mutation No. 6259 dated 6.11.2001 (Ext. P-2) attested and sanctioned in his favour. Plaintiffs also claimed that on the strength of forged and fictitious Will and the mutation, defendant No.1 executed bogus and void sale deed No. 1699, dated 4.12.2001 (Ext. DW-3/A) and sold two Bigha of land out of the land comprised in Khata Khatauni No. 961/1552 measuring 20-8-0 Bigha, without any right, title or interest, on the basis of which defendant No.2 started making interference with the ownership and possession of the plaintiffs and proforma defendants over the suit land. 6. Defendant No.1-Ram Lal, refuted the aforesaid claim of the plaintiffs on the ground of maintainability, estoppel, valuation, suppression of true and material facts and limitation. On merit, he denied that Thakur Dass died on 14.8.1990 and claimed that he died on 3.3.1996. Defendant No.1 pleaded that Thakur Dass has executed a valid and last Will dated 3.8.1995 (Ext. D-A), in lieu of services rendered by defendant No.1, in his favour, out of love and affection, on the strength of which he has become absolute owner in exclusive possession of the suit land, as such, plaintiffs and proforma defendants have no right, title or interest in the suit land. D-A), in lieu of services rendered by defendant No.1, in his favour, out of love and affection, on the strength of which he has become absolute owner in exclusive possession of the suit land, as such, plaintiffs and proforma defendants have no right, title or interest in the suit land. It is further averred that mutation No. 625 was wrongly attested in favour of plaintiffs, defendant No.1 and proforma defendants. Defendant No.1 further pleaded that he was competent to sell the land and he had executed a legal and valid sale deed. 7. Defendant No.2-Tot Ram, i.e. present appellant, contested the suit by taking preliminary objections and claimed hat he is a bona fide purchaser for valuable consideration hence, suit is not maintainable. Besides above, defendant No.2 disputed that Thakur Dass died on 14.8.1990 and claimed that he had expired in the year 1996. Defendant No. 2 claimed that Thakur Dass had executed a valid Will dated 3.8.1996(Ext. D-A) in favour of defendant No.1 and hence, defendant No.1 succeeded to the suit as an absolute owner. He also averred in the written statement that prior to purchasing the suit land, he had made local investigation regarding ownership and possession of defendant No.1 and defendant No. 1 was found in actual possession of the land and was also recorded as owner-in-possession in the revenue record and even a bargain was struck in the presence of the plaintiffs and proforma defendants, who never raised any objection regarding the title of the suit land and only thereafter, defendant No.2 through a registered sale deed dated 4.12.2001 (Ext. DW-3/A) purchased two Bigha of land out of the suit land for a sale consideration of Rs. 86,000/-, which was paid by defendant No.2 bona fide and in good faith to defendant No.1. Defendant No.2 claimed that he is owner-in-possession of the suit land and plaintiffs have no right, title or interest over the same. 8. On the basis of pleadings of the parties, learned trial Court framed following issues for determination: 1. Whether the share in the suit property previously owned by Thakur Dass devolved on plaintiffs and defendants No.1, 3 and 4 as alleged? OPP 2. Whether the plaintiffs are in joint possession of the suit property? OPP 3. Whether the plaintiffs are entitled to decree of joint possession? OPP 5. Whether the mutation No. 6259, dated 6.11.2001 is illegal, null and void? OPP 2. Whether the plaintiffs are in joint possession of the suit property? OPP 3. Whether the plaintiffs are entitled to decree of joint possession? OPP 5. Whether the mutation No. 6259, dated 6.11.2001 is illegal, null and void? OPP 6. Whether the sale of the part of the suit land through sale deed No. 1699 dated 4.12.2001 by the defendant No. 1 in favour of defendant No.2 is null and void? OPP 7. Whether Thakur Dass died on 14.8.1990? OPP 8. Whether the plaintiffs are estopped from filing this suit by their act and conduct? OPD 9. Whether the suit is time barred? OPD 10. Whether the plaintiffs have not come with clean hands and have suppressed the material facts? OPD 11. Whether the suit is not properly valued, if so, what is the correct value? OP parties 12. Whether Thakur Dass executed a valid Will dated 3.8.1995 in favour of defendant No. 1? OPD 13. Relief:” 9. Learned trial Court, on the basis of evidence led on record by respective parties, partly decreed the suit of the plaintiffs and held them and the defendants Nos. 1, 3 and 4 to be joint owners of suit land. Learned trial Court also held sale deed No. 1699, dated 4.12.2001 (Ext. DW-3/A), executed by defendant No.1 in favour of defendant No.2, to be legal and valid and dismissed the prayer of the plaintiffs for declaring sale deed to be null and void. Learned trial Court, by way of relief of permanent prohibitory injunction in favour of the plaintiffs and proforma defendants No. 3 and 4, restrained defendants Nos. 1 and 2 from interfering in the suit land, in any manner. 10. Interestingly, being aggrieved and dissatisfied with the aforesaid judgment and decree passed by learned trial Court, whereby sale deed executed by defendant No.1 in favour of defendant No.2 was held to be valid, plaintiffs filed an appeal in the court of learned District Judge, Kullu, but defendant No.1 Ram Lal, as well as defendant No.2 chose not to lay any challenge to the judgment and decree passed by learned trial Court, despite the fact that the plaintiffs alongwith defendant No.1 and proforma defendants were held to be joint owners of the suit property. 11. 11. Learned District Judge, Kullu, by way of judgment and decree dated 29.12.2005, accepted the appeal and reversed the findings recorded by learned trial Court on issue No. 6, whereby sale of part of suit land made through sale deed No. 1699, dated 4.12.2001 by defendant No. 1 in favour of defendant No.2 was held to be legal and valid. Learned first appellate Court modified the judgment and decree passed by learned trial Court to the extent that defendant No. 1 was only a cosharer with the plaintiffs and proforma defendants to the extent of 1/8th share measuring 2-11-0 Bigha out of total land denoted by Khata Khatauni No. 961/1552, Khasra Nos. 29, 30, 31, 188, 222, 225, 257, 318, 327, 334 and 341 Kita 11, measuring 20-8-0 Bigha, as such, was entitled to sell the land, only to the extent of his share and sale deed in favour of defendant No.2 exceeding his share is null and void and shall be deemed valid to the extent of his share only. Rest of the findings of learned trial Court were upheld. In the aforesaid background, defendant No.2, who has purchased 2 Bigha of land by way of sale deed No. 1699 (Ext. DW- 3/A), from defendant No.1-Ram Lal, has approached this Court in the instant proceedings, praying therein to set aside the findings returned by learned first appellate Court inasmuch as sale deed Ext. DW-3/A exceeding his share out of 2 Bigha, has been declared null and void. 12. Present appeal came to be admitted on following substantial questions of law on 13.1.2006: 1. Whether the learned courts below have misread and mis-appreciated the pleadings and the evidence on record, both oral and documentary and on account of such misreading and mis-appreciation the findings are bad in law? 2. Whether the execution of the Will Ex DA having been duly proved in accordance with provisions of Section 63 of the Indian Succession Act by examining the scribe DW-4 and attesting witness DW-1, the same could be held to be validly executed and whether the circumstances so held to be suspicious could be made out contrary to the law laid down in AIR 1997 HP-43 Shakunta vs. Savitri and AIR 1995 SC 1684 and whether such findings are sustainable? 3. 3. Whether a transferee acting in good faith after taking reasonable prudent care regarding the title of the property on basis of inquiry has discharged the onus envisaged under Section 41 of the transfer of Property Act and whether the onus thereafter shifts to the real owner that the transferee had notice of defect in the transferor's title and whether such sale without discharge of onus by the alleged real owner can be held to be void or voidable? 4. Whether on the basis of the consent expressed or implied of the persons interested in the immovable property, a person is the ostensible owner and thereafter transfer of such immovable property for valid consideration is valid, and whether thereafter such transfer can be held to be defective whereas the transferee has shown that he has acted in good faith. taking reasonable care and made inquiries and thereafter purchased the land? 13. Since all the substantial questions of law are inter-linked, as such, same are being taken up together for determination, to avoid repetition of discussion of evidence. 14. I have heard learned counsel for the parties and perused the material available on record. 15. Having heard learned counsel for the parties and perused the material available on record, this court finds that the plaintiffs filed a suit for declaration with consequential relief of permanent prohibitory injunction against defendants including the present appellant (defendant No.2) averring therein that the plaintiffs, defendants Nos. 1, 3 and 4 are joint owners of the suit property being legal heirs of late Thakur Dass, who died intestate and as such, mutation No. 659, dated 6.11.2001, sanctioned in favour of defendant No.1 showing him to be absolute owner of the suit land on the strength of Will, allegedly executed by late Thakur Dass bequeathing his entire property in favour of defendant No.1, is null and void and they are not bound by the same. Though the defendant No.1 Ram Lal, by way of written statement, refuted the aforesaid claim and asserted that he has become absolute owner of suit property on account of Will, executed in his favour by late Thakur Dass, but such plea of him was not accepted by learned trial Court, who, on the basis of evidence collected on record by respective parties held the Will to be shrouded by suspicious circumstances, however, learned trial Court, found sale deed dated 4.12.2001, to be legal and valid, for the reason that defendant No.1 otherwise being one of the legal heirs of late Thakur Dass was entitled to 1/8th share in the property alongwith the plaintiffs, defendants Nos. 3 and 4, as such, he could sell his share. Defendant No.2 also claimed that defendant No.1 had become absolute owner on strength of the Will Ext. D-A, dated 3.8.1995, as such, sale made in his favour vide sale deed dated 4.12.2001 (Ext. DW-3/A) is legal and valid. However, such plea of his was not accepted but the sale made in his favour vide sale deed dated 4.12.2001 was held to be legal and valid on the ground that defendant No.1 Ram Lal was competent to sell his 1/8th share in the property, which comes out to 2-11-0 Bigha. Aforesaid finding returned by learned trial Court was never laid challenge in appeal by the defendants, including appellant-defendant No.2, as such, same has attained finality qua them. 16. Plaintiffs being aggrieved on account of aforesaid finding returned by learned trial Court, preferred an appeal in the court of learned District Judge, Kullu which came to be allowed partly vide judgment and decree dated 29.12.2005. Learned District Judge, while modifying judgment and decree passed by learned trial Court, held that defendant No.1 was only a co-sharer with the plaintiffs and defendants Nos. 3 and 4 to the extent of 1/8th share measuring 2-11-00 Bigha out of the land comprised in Khewat Khatauni No. 961/1552, Kita 11, Khasra Nos. 29, 30, 31, 188, 222, 225, 257, 318, 327, 334 and 341, measuring 20-8-0 Bigha and was entitled to sell only to the extent of his share, hence, the sale deed Ext. DW-3/A, exceeding his share is null and void and same is valid to the extent of his share. 17. Mr. Sanjeev Kuthiala, learned senior counsel assisted by Ms. 29, 30, 31, 188, 222, 225, 257, 318, 327, 334 and 341, measuring 20-8-0 Bigha and was entitled to sell only to the extent of his share, hence, the sale deed Ext. DW-3/A, exceeding his share is null and void and same is valid to the extent of his share. 17. Mr. Sanjeev Kuthiala, learned senior counsel assisted by Ms. Anaida Kuthiala, Advocate, while appearing for defendant No. 2, though vehemently argued that the aforesaid finding returned by learned District Judge is totally perverse and contrary to record and could not be recorded in light of the pleadings and evidence adduced on record by respective parties but, this court finds no reason to agree with the aforesaid submission, for the reason that though learned first appellate Court upheld the finding of learned trial Court that defendant No. 1 Ram Lal, being co-sharer to the extent of 1/8th share was entitled to sell his share but clarified that the sale deed, exceeding his share is null and void. 18. In the case at hand, record reveals that defendant No.1, Ram Lal, after having sold 40/408 shares out his 1/8th share in the suit land, also sold 11/408 shares in favour of one Kewali, as is evident from copy of Jamabandi for the years 2000-2001, annexed as Annexure A-2 with the CMP No. 63 of 2006 filed under Order XLI, rule 27 CPC, meaning thereby that defendant No.1, Ram Lal, has already sold his entire share of 2-11-00 Bigha, out of his 1/8th share in the suit property. But since the Will, Ext. D-A has been held to be shrouded by suspicious circumstances and no appeal, whatsoever, ever came to be filed against aforesaid finding returned by learned trial Court on behalf of defendant No.1- Ram Lal, plea made on behalf of defendant No.2 with regard to correctness of the finding returned by learned Court below qua execution of Will, Ext. D-A, cannot be gone into in the instant proceedings and as such, substantial question of law No.;2 needs no determination at this stage. 19. Similarly, this Court finds that defendant No.2, while justifying sale made in his favour by defendant No.1, vide sale deed, on the strength of Will, Ext. D-A, cannot be gone into in the instant proceedings and as such, substantial question of law No.;2 needs no determination at this stage. 19. Similarly, this Court finds that defendant No.2, while justifying sale made in his favour by defendant No.1, vide sale deed, on the strength of Will, Ext. D-A, claimed that since he had purchase a portion of land under bona fide belief that defendant No.1 is the absolute owner of the property, as such, sale made in his favour otherwise requires to be protected in terms of S.41 of the Transfer of Property Act. Though the learned Courts below, held the Will, ext D-A to be shrouded by suspicious circumstances, but yet held defendant No.1 entitled to sell his 1/8th share in the suit land, as a consequence of which, sale deed made in favour of defendant No.1 vide sale deed, Ext. DW- 3/A, came to be upheld, hence, question of protecting his right, if any, in terms of S.41 of the Transfer of Property Act does not arise, as far as present proceedings are concerned, especially when defendant No. 2 has not been able to show that defendant No.1 Ram Lal has already sold some land out of his share to some other person, as a consequence of which, land sold to defendant No.2 vide sale deed would decrease. 20. This court finds from the record (page-60 of paper book) that subsequent to sale of 40/408 shares out of 1/8th share by defendant No.1 Ram Lal, he sold 11/408 shares in favour of one Kewali, meaning thereby defendant No.1 has sold his entire share of 2-11-00 Bigha. 21. Careful perusal of sale deed, Ext. D-A clearly reveals that 40/408 shares came to be sold to defendant No.2 i.e. 2 Bigha, entry qua which already stands recorded in the revenue record, as is evident from Jamabandi for the years 2000-2001, Annexure A-2 annexed with CMP No. 63 of 2006, vide mutation No. 6309, hence, sale, if any, made by defendant No.1 qua 11/408 shares in favour of one Kewali, has no bearing, if any, on the share of defendant No.2, which was admittedly 2-0-0 Bigha. 22. 22. This court, after having scanned entire evidence available on record, is of the view that the learned first appellate Court has dealt with each and every aspect of the matter meticulously, as such, it cannot be said that there is any misreading of evidence by it. 23. Substantial questions of law are answered accordingly. 24. Now, it would be appropriate to deal with the specific objection raised by the learned counsel representing the defendants with regard to maintainability and jurisdiction of this Court, while examining concurrent findings of law and facts returned by both the Courts below. Learned counsel for the respondents, 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 reappreciation 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) 25. 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 Apex Court and true it is that in normal circumstances High Court, while exercising powers under Section 100 CPC, is restrained from re-appreciating the evidence available on record. 26. There can be no quarrel (dispute) with regard to aforesaid observation made by the Apex Court and true it is that in normal circumstances High Court, while exercising powers under Section 100 CPC, is restrained from re-appreciating the evidence available on record. 26. 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.” 27. It is quite apparent from the 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. 28. Consequently, in view of detailed discussion made herein above, I find no merit in the appeal at hand, which is accordingly dismissed. Judgment and decree passed by learned first appellate Court are upheld. 29. Pending applications, if any, are disposed of. Interim directions, if any, stand vacated.