Babita And Others vs Rajrati

Amit Rawal, J

The appellant-plaintiffs are in Regular Second Appeal against the concurrent findings of facts and law, whereby, the suit seeking declaration of the sale deed Vasika No.3546 dated 30.12.2011 and mutation bearing No.4408 dated 30.12.2011 being illegal, null and void and not binding upon their rights; with a further relief of permanent injunction restraining the defendant from dispossessing the plaintiffs from peaceful possession over the property in dispute, has been dismissed by both the Courts below.

Before adverting to the arguments of learned counsel for the appellant-plaintiffs, it would be in the fitness of things to give factual background of the matter.

The suit aforementioned was instituted by the plaintiffs namely Babita, Kirti and Vinti on the premise that Raju son of Dharampal son of Shri Chand was the owner in possession and co-sharer with his brother to the extent of 1/8 share of land comprised in khewat. The description of the property was given as under:-

"khewat no.409/399 min khatoni no.466, rect and killa nos. 37/1/2(2-11), 2/1(1-2), 3/1 (4-0), 10(8-0), 55/24 (2-12), 25(8-0), 56/16/2(7-2), 17(7-11), 21(8-0), 22(8-0), 25/1(1-11), 61/2 (7-7), 9(8-0), 10/1(4-8), 69/1(8-0), 2(8-0), 70/4(2-12), 5(8-0), kite 18 total 104 kanal 16 marla, khewat no.409/1/399 min khatoni no.467/1, rect., and killa nos.28/12/2(2-6), 19(8-6), 21/2(4-6), 22/1(2-12), 22/2(5-8), 23/2(4-0), 37/1/1/(5-1) kite 7 total 31 kanal 19 marla, khewat no.421, khatoni no.483, rect. And killa no.56/13 (7-11), 14/1(4-18), 18/1(4-12) kite 3 total 17 kanal 1 marla situated in the revenue estate of village Bero Do Pana, Tehsil Beri, District Jhajjar according to the jamabandi for the year 2004-05."

on the ground that it being ancestral and Raju-husband of plaintiff no.1 was not maintaining good health and owing to illness was unable to execute the sale deed in favour of defendant no.1, who was none-else but his sister. They had a right by birth in the property being co-parcenary. The alleged sale consideration of `33,60,000/-as reflected in the sale deed was not passed on to Raju or to the appellant-plaintiffs and when defendants requested to get the sale deed cancelled and mutation corrected, candidly refused to do so giving cause of action to institute the suit.

The suit was contested by the respondent-defendant by taking various preliminary objections for want of cause of action, maintainability. On merits, it was denied that plaintiff no.1 did not have good relation with Raju, much less, was not taking care of Raju (since deceased). It was the defendant, who was taking care of Raju by meeting his all expenses, rather sold the suit land for his treatment to the defendant against sale consideration. Despite having strange relation with plaintiff no.1, Raju did not sell the complete property rather left the land comprised in khewat no.510/487 of his share measuring 8 kanals 15 marlas situated within the village Bhutiyan, Tehsil Beri and District Jhajjar resulting into sanction of mutation bearing no.4170 (Ex.D11) which was concealed.

Since both the parties were at variance, the trial Court framed following four issues including the issue of relief:-

"1. Whether the impugned sale deed no.3546 dated 30.12.2011 is illegal, null and void and not binding upon the rights of the plaintiff? OPP

If issue no.1 is proved in favour of the plaintiffs, whether the plaintiff are entitled for relief of possession and permanent injunction as prayed for? OPP

Whether the suit of the plaintiffs are legally neither maintainable nor sustainable in the eyes of law? OPD

Relief."

The appellant-plaintiffs in support of their evidence examined Jai Bhagwan Assistant Reader to SDM, Beri as PW1, who brought the summoned record, i.e., letter no.6 dated 5.1.2012 (Ex.P1); application seeking legal action (Ex.P2); application seeking medical examination (Ex.P3 ); statement of Raj Kumar (Ex.P4); statement of Roshni (Ex.P5); statement of Ranbir Singh (Ex.P6); statement of Rajrati (Ex.P7) and police report (Ex.P8).

Plaintiff Babita appeared as PW2, who tendered her affidavit Ex.PW2/A; Satbir Singh, registration clerk Tehsil Beri as PW3, who proved the sale deed vasika no.3546 dated 30.12.2011 (Ex.P9); Will (Ex.P10) and registered Will as Mark 'A'.

On the other hand, defendant examined Narender son of Prem Singh as DW1, DW2- Bhale Ram attesting witnesses of the sale deed, Sombir son of Satbir as DW3, Rajarati as DW4; R.P.Sharma as DW5, deed writer of the sale deed; Ram Kishan -record keeper as DW6, who brought on record various sale deeds, Exs.D4 to D6, Ex.D8, Ex.D9, Ex.D11, and Narotam Harit as DW7, who stated that he had taken a loan on mortgage of his land measuring 8 kanal 0 marla for `60,000/- and Dr. B.K.Saini appeared as DW8, who had seen the documents Ex.D18 to Ex.D20 testified that Raju was found to be HIV positive.

Besides this, defendant also relied upon the certain documentary evidence which reflected in para 13 of the trial Court judgment. The trial Court on the preponderance of evidence dismissed the suit and appeal filed before the Lower Appellate Court also met with the same fate.

Mr. Karan Singh, learned counsel appearing on behalf of the appellant-plaintiffs submitted that civil miscellaneous application bearing No.1727-C of 2018 under Section 151 of Code of Civil Procedure has been filed vide which indulgence has been sought to place on record the pedigree table of the husband of appellant no.1 and father of appellants no.2 and 3 (Annexure A-1), copy of jamabandi for the year 1984-85 (Annexure A-2) and copy of jamabandi for the year 1959-60 (Annexure A-3) which are essential and necessary for adjudication of the appeal. Initially, the same could not be placed on record which shows that the property at the hands of Raju was ancestral.

On merits, he submitted that both the Courts below abdicated in not appreciating the fact that there was no occasion for Raju to bequeath a chunk of land in favour of defendant-Raj Rati by denying the claim of minor daughters. The appellant-plaintiffs had also filed a complaint against the defendant-her husband Raju and Rajpal son of Dharampal before the SDM on 05.01.2012 regarding forgery of the sale deed, whereas, Raju died on 07.01.2012. He was suffering from ailment and therefore, was not in a position to execute the sale deed.

The property in dispute was co-parcenary, ancestral and Hindu joint property. The appellant-plaintiffs are still co-sharers and co-owners in possession. The sale deed dated 30.12.2011 (Ex.P9) being result of forgery and fraud having been played upon Raju, was not sustainable as it was not executed for legal necessity. The trial Court did not consider or refer the statement of PW3 -Satbir Singh, Registration Clerk and Will Ex.P10 cancelled by Raju.

The trial Court also did not consider the statement of DW-1 Narender as he categorically stated that affidavit Ex.DW1/A was prepared by his Advocate Rajender Kadian, though was educated upto 10th and did not know English. DW2-Bhale Ram Lambardar stated in his cross examination that he was illiterate and thumb marked but could sign his signatures and therefore, he did not know what was written in Ex.DW2/A.

The Courts below failed to consider the statement of DW-4 Raj Rati as in cross-examination she stated that they were five brothers and sisters, also admitted the nature and character of the property being ancestral. The consideration of `33,60,000/- was never given or passed to the appellant-plaintiffs. R.P.Sharma-DW5 in cross-examination stated that the property in Ex.D7 had no concern with Raju son of Dharampal. DW-7 Narottam Harit son of Shiv Kumar admitted that he had come to the Court to make a statement on the asking of the defendant-Raj Rati.

The trial Court erred in considering that there was no dispute qua the fact that property in dispute was inherited by Raju by way of Will executed by common ancestor Shri Chand in view of registered Will No.48 dated 21.07.1984 and the burden shifted upon the plaintiffs that the property in dispute was ancestral and in this regard, jamabandi for the year 2004-05 (Ex.D2) was placed on record showing Raju was co-sharer with Raj Pal son of Dharampal.

The provisions of Section 8 of Hindu Succession Act did not apply to the facts and circumstances of the present case, therefore, the Courts below erred and abdicated, much less misdirected in dismissing the suit. The factum of Raju suffering from ailment was admitted by the defendant and thus, urged this Court for formulating the substantial questions of law as drawn in the memorandum of appeal.

I have heard the learned counsel for the appellant-plaintiffs, appraised the judgments and decrees of the Courts below and of the view that there is no force and merit in the submissions of Mr. Karan Singh. The documents sought to be placed on record by way of civil miscellaneous application under Section 151 CPC, which should have been filed under Order 41 Rule 27 CPC.

Be that as it may, it is settled law that mentioning of incorrect provisions of law would not be fatal to the decision of the application or case but fact of the matter is that the contents of the application, and ingredients of Order 41 Rule 27 CPC are conspicuously wanting. It has not been explained as to how and in what manner the appellant-plaintiffs were prevented to place on record the documentary evidence. Even by going through the documentary evidence, killa numbers mentioned therein are not related to the property in dispute and therefore, in my view, if the aforementioned documents are taken into consideration, though the plaintiffs cannot be permitted to fill up the lacuna at this stage, would not come to the rescue for the purpose of adjudication of the present appeal as the plaintiffs have not been able to connect the property in dispute i.e., subject matter of the sale deed to be ancestral, for, conceded un-controverted fact is that Raju inherited the property by virtue of Will Ex.D17 from Shri Chand. The property, if ancestral cannot be gifted by way of Will except for legal necessity, thus, present application is nothing but an attempt to delay the adjudication of the matter. Accordingly, the same is hereby dismissed.

On merits, once it has been proved on record that the property at the hands of Raju came from Shri Chand by way of registered Will bearing No.48 dated 21.07.1984 and mutation Ex.D17. It cannot be clothed with character of the ancestral property as the contents of testamentary document revealed that it was not for legal necessity.

There is another aspect of the matter. Concededly, Raju had not sold the entire land to defendant Raj Rati but had left the land measuring 8 kanals 15 marlas bearing khewat no.510/487 situated in village Bhutiyan, Tehsil Beri and District Jhajjar. Mutation bearing no.4170 had already been sanctioned in favour of the plaintiffs. The ingredients of fraud as envisaged under Order 6 Rule 4 CPC have not been complied with.

Mere admission of the defendants regarding nature and character of the property being ancestral does not amount to discharging the onus as no documentary evidence i.e. original excerpt which was/is required to be placed on record in view of the decision rendered by this Court in Banta Singh and others Vs. Phuman Singh and others 1972 PLJ 275 being essential requirement of law for succeeding in suit claiming right in the property by birth. If at all, the plaintiffs had not received consideration, nothing prevented them to place on record bank statement. Withholding of such information, in my view, would yield into adverse inference. The sale consideration was not meagre, i.e.`33,60,000/-. The estranged relationship between plaintiff no.1, widow of Raju with Raju had not been controverted. All these factors weighed in the mind of the Courts below while non-suiting the appellant-plaintiffs.

As an upshot of my findings, I do not find any illegality and perversity in the concurrent findings of facts as the plaintiffs miserably failed to prove the per-pleaded case, much less, no substantial question of law arises for determination of this Court.

Accordingly, the appeal stands dismissed.