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2023 DIGILAW 189 (HP)

Satya Parkash v. Vipan Kumar (deceased) through his LRs. Smt. Nina

2023-03-28

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of this appeal, the appellants have challenged the judgments and decrees passed by learned Courts below, in terms whereof, the suit for declaration filed by the plaintiffs was dismissed and the appeal also met with the same fate. 2. The suit filed by the plaintiffs was for declaration that the land measuring 193420 Sq.Metres, bearing khewat No.117, khatauni No.181, khasra Nos.1711, 1803, 1902, 1903, 1905, 1906, 1907, 1911, 1912, 1913, 1914, 1915 and 1916, as entered in the jamabandi for the year 200506, situated in upmohal Chabba Nagar, Santokhgarh, Tehsil and District Una, H.P., was owned by one Bhagat Ram, the predecessor-in-interest of the defendants. He had mortgaged the suit land in favour of the father of the plaintiffs vide Mortgage Deed dated 04.06.1945. As per the plaintiffs, their father and thereafter, they alongwith their sisters continued to be in possession of the suit land as mortgagees. On 16.10.1964, Bhagat Ram sold the suit land to the plaintiffs vide Sale Deed of even date for a consideration of Rs.2,500/The possession of the plaintiffs continued thereafter as owners. For some reason, the plaintiffs could not get the mutation attested in their favour due to paucity of time. This emboldened the defendants, who on the strength of wrong entries in the revenue record, made an endeavour to alienate the suit land. The defendants were asked by the plaintiffs to admit their claim, but as the defendants did not do so, hence, the suit for declaration and issuance of permanent injunction in favour of the plaintiffs and against the defendants. 3. The suit was resisted by the defendants, inter alia, on the ground that though the suit land was owned and possessed by Bhagat Ram, their predecessor-in-interest and the plaintiffs had no concern whatsoever with the suit land which was exclusively in the ownership and possession of the defendants, who had succeeded to the estate of Bhagat Ram. According to the defendants, neither the plaintiffs nor their predecessor-in-interest even came in possession of the suit land in any capacity either as owners thereof or as mortgagees and in fact no Sale Deed as alleged by the plaintiffs was ever executed by Bhagat Ram in their favour. 4. By way of replication, the plaintiffs reiterated their stand. 5. On the basis of the pleadings of the parties, learned Trial Court framed the following issues: “1. 4. By way of replication, the plaintiffs reiterated their stand. 5. On the basis of the pleadings of the parties, learned Trial Court framed the following issues: “1. Whether the plaintiffs have become owners in possession of the suit land on the basis of sale deed dated 16.10.1964, as alleged? OPP 2. Whether the revenue entries in favour of the defendants are wrong, illegal, null and void, as alleged? OPP 3. Whether the plaintiffs are entitled to the relief of injunction? OPP 4. Whether the suit is not maintainable in the present form? OPD. 5. Whether the plaintiffs have no locus standi to file this suit? OPD. 6. Whether the suit is not within time? OPD. 7. Whether the plaintiffs are estopped by their act and conduct and acquiescence to file this suit? OPD. 8. Whether the suit is bad for non-joinder of necessary parties? OPD. 9. Relief.” 6. On the strength of evidence which was led by the parties in support of their respective contentions, the issues so framed were answered by learned Trial Court as under: “Issue No.1 : No. Issue No.2 : No. Issue No.3 : No. Issue No.4 : Yes. Issue No.5 : No. Issue No.6 : Yes. Issue No.7 : No. Issue No.8 : No. RELIEF : The suit is dismissed as per operative part of the judgment.” 7. The suit was dismissed by learned Trial Court by inter alia returning the findings that description of the property in Sale Deed Ext.PW1/A being relied upon by the plaintiffs was not inconsonance with the pleadings. Learned Trial Court further held that there was no reference in the Sale Deed that the khasra numbers mentioned therein pertained to the jamabandi of which particular year. Leaned Trial Court also held that whereas in terms of the pleadings, the sale consideration for which the land was sold by the predecessor-in-interest of the defendants to the plaintiffs was Rs.2,500/, but as per the Sale Deed the amount of sale consideration was Rs.5,000/. Leaned Trial Court also held that whereas in terms of the pleadings, the sale consideration for which the land was sold by the predecessor-in-interest of the defendants to the plaintiffs was Rs.2,500/, but as per the Sale Deed the amount of sale consideration was Rs.5,000/. Learned Trial Court also held that there was no cogent explanation that if indeed any such Sale Deed qua the suit land was executed between Bhagat Ram and the plaintiffs, then why the mutation was not got attested by the plaintiffs in their favour since 1964 and further, why the revenue entires, in terms whereof, the suit land was stated to be owned and possessed by the defendants, were never assailed by the plaintiffs, because it was not their case that they were not aware of these entries. On these basis, learned Trial Court dismissed the suit by holding that that the plaintiffs have not been able to prove the due execution of the Sale Deed or that they were owners-in-possession of the suit land. 8. In appeal, these findings were upheld by the learned Appellate Court. 9. Both the learned Courts below have concurrently returned the findings that the exhibits on record, i.e. jamabandi Ext.P2, pertaining to the year 195455 and Sale Deed Ext.PW1/A, were not in harmony with each other as certain khasra numbers mentioned in Ext.P2, i.e. khasra No.538, was not there in this jamabandi, whereas the same found mention in the Sale Deed. Concurrent findings further stand returned to the effect that there were contradictions in the pleadings vis-a-vis the Sale Deed being relied upon by the plaintiffs and further, no cogent explanation was coming forth, as to why the mutation was not got attested by the plaintiffs on the strength of the Sale Deed in their favour. Learned Appellate Court has also returned the findings that from the perusal of Sale Deed Ext.PW1/A, it could not be ascertained that khasra numbers mentioned therein were on the basis of the jamabandi for which year and that the appellants had miserably failed to prove and establish that they had become ownersinpossession of the suit land on the basis of Sale Deed dated 16.10.1964. Learned Appellate Court also held that the appellants were having knowledge about the entries in the revenue record in favour of the defendants, which were never challenged by them, nor it was the pleaded case of the plaintiffs that they were not having any knowledge about wrong revenue entries in favour of the defendants. As per learned Appellate Court, this demonstrated that the appellants were aware of the revenue entries in favour of the defendants and the same were in their knowledge, yet they did not agitate the entries. On these basis, learned Appellate Court held that learned Trial Court rightly held that the plaintiffs had failed to prove their case against the defendants. 10. Having carefully gone through the judgments and decrees passed by both the learned Courts below and contentions of learned counsel for the appellants and learned counsel for the represented parties, this Court is of the considered view that there is no substantial question of law involved in the present appeal, because the findings which have been returned by both the learned Courts below are pure and simple findings of fact and as it could not be disputed during the course of arguments that indeed there were discrepancies vis-a-vis the pleadings and the contents of Ext.PW1/A, this Court further sees no reason to admit the appeal. It could not be demonstrated by learned counsel that findings returned by learned Courts were perverse and not borne out of the record. 11. At this stage, learned counsel for the appellants submitted that the mistakes in the plaint were in fact typographical mistakes. All that this Court can observe with regard to said submission made by learned counsel for the appellants is that there was enough time with the parties, both when the matter was pending before learned Trial Court as well as with learned Appellate Court, to have had moved appropriate application to do the needful, which admittedly was not done. 12. In view of above discussion, as this Court does not finds any merit in the present appeal, the same is, accordingly, dismissed at the stage of admission, so also the pending miscellaneous applications, if any. No order as to cost. Interim order, if any, stands vacated.