Gauri Dutt & Ors. vs Sewak Ram

Sureshwar Thakur, J.

1.The plaintiffs/petitioners herein instituted, a suit for declaration, and, for permanent prohibitory injunction, and therein claimed rendition, of, a

declaratory decree (a) of the revenue records vis-a-vis the suit land, as, prepared after 1975-76 being wrong, and, illegal, and, the sanctioning of

mutation No. 475 of 24.03.1976 being also declared as null and void (b) besides claimed rendition of a decree vis-a-vis sale deed executed qua khasra

No. 39, measuring 8-6 bighas and khasra No.45/40 min, measuring 19-19 bighas, total 28-5 bighas, being quashed, on the ground, that, the

predecessor-in-interest of the plaintiffs, one Hans Raj being immediately, on coming into force of Himachal Pradesh Tenancy and Land Reforms Act,

1972, rather standing entitled to automatic conferment of proprietary rights, thereupon, (c) accural of rights whereof ensued vis-a-vis him, given his, in

the jamabandi(s) prior thereto, hence, standing recorded therein as gair maurusi, reiteratedly thereupon, the sale deeds, if any, executed vis-a-vis the

aforesaid khasra numbers, being declared to be null, and, void, and, the apposite mutation in consonance therewith bearing No. 475 of 24.03.1976 ,

being also declared to be wrong, illegal, null and void.

2.The defendant, resisted, the suit of the plaintiff and claimed, that, under a relinquishment deed, the father of the defendant Shri Sada Nand, rather

relinquishing in favour of the defendant/respondent herein, 1/6 share in the land bearing Khata/Khatauni No.1/1 to 1/9, total kitas 40 measuring 352-10

bighas, qua which mutation No.471 of 21.03.1966 stood attested. Since, the Assistant Collector 1st Grade, Kasauli, in case No.21A/9 of 2012, under,

orders recorded on 27.08.2014, upon apposite motions made before him, by the concerned, hence ordered for dismemberment of the suit land,

thereupon, the application, cast under the provisions of Order 39, Rules 1 and 2 of the CPC, instituted by the plaintiffs/petitioners herein, before, the

learned trial, wherein, they claimed ad interim injunction, for restraining the defendant, from, causing any interference in, and, over the suit property,

and, from making any type of interference, dispossessing the applicants/petitioners, or creating any charge or loan over the suit land, or changing the

nature of the suit land, and, from alienating the suit land, and, initiating partition proceedings on the basis of wrong, and, illegal entries in favour of the

respondent/defendant till the decision of the suit, rather hence entailing dismissal. The learned trial Court, upon, considering the respective pleadings

set up, by the parties, declined the relief to the petitioners herein/applicants. In an appeal carried therefrom, before the Appellate Court, the latter

Court also proceeded to dismiss the appeal, and, recorded findings in affirmation vis-a-vis the order recorded by the learned trial Court. Being

aggrieved, therefrom, the petitioners herein institute the instant petition.

3.Both the learned Courts below had, upon, applying vis-a-vis the germane material(s), hence, the trite triplicate tests, to be borne in mind, while

deciding a application, cast under Order 39, Rules 1 and 2 of the CPC, tests whereof are comprised, in, (i) of a prima facie case existing, (ii) and no

irreparable loss or injury being caused to the plaintiffs in case relief is declined and (c) balance of convenience being loaded vis- a- the

plaintiffs/applicants, rather hence rendered findings adversarial vis-a-vis the plaintiffs. The anchor of the aforesaid dis-affirmative findings

concurrently, recorded by both the learned Courts below qua the material on record, hence not justifying the affording of relief to the plaintiff, stood

rested upon, (i) the factum of one Hans Raj, during, his life time not challenging the apposite sale deed, and, rather after 41 years elapsing therefrom,

his successors rearing a challenge thereupon, (ii) hence, the plaintiffs being nowat estopped, to cast any challenge qua the validity of the sale deed. (iii)

in making the aforesaid conclusion, both, the learned courts below, apparently slighted, the impact of the apposite sale deed, being, registered on

27.01.1976, however, prior thereto, the H.P. Tenancy and Land Reforms Act, rather coming into force, with statutory contemplation(s) occurring

therein, vis-a-vis automatic bestowment, of proprietary rights, upon, Hans Raj, the vendee of the apposite sale deed. Nowat, hence, for, making a

befitting conclusion, that whether the predecessor-in-interest of the plaintiffs, one Hans Raj, was, prior to coming into force of the Himachal Pradesh

Tenancy and Land Reforms Act, hence, evidently recorded in the apposite jamabandis, to be gair maurusi, an allusion to the jamabandis, for the year

1951-52, 1955-56, 1958-59, 1963-64 and 1968-69, is imperative, (iv) allusion(s) thereto, denote, of reflections being held therewithin qua the

predecessor-in-interest of the plaintiffs, being recorded, as gair maurusi vis-a-vis the suit khasra numbers. However, though the aforesaid reflection

hence occurred, in jamabandis appertaining vis-a-vis the apposite reckonable period, especially the one immediately prior to coming into force of H.P.

Tenancy and Land Reforms Act, whereupon, though hence Hans Raj stood prima facie entitled vis-a-vis automatic statutory conferment of

proprietary rights qua the suit khasra numbers, (v) yet no apposite order of mutation, whereby, proprietary rights stood sanctioned in his favour, came

to be attested by the Revenue Officer concerned, (vi) contrarily in the year 1976, he executed a sale deed vis-a-vis the vendors constituted therein.

The learned Courts below, on anvil, of principle of estoppel, arising from, the plaintiffs' making a belated challenge vis-a-vis the validity, of, sale deed

executed inter se their predecessor vis-a-vis the vendors constituted in the apposite sale deed, rather concluded of thereupon, the plaintiffs being

baulked to espouse their claim, and, rather hence declined relief to the plaintiffs, (vii) estoppel whereof reiteratedly stood concluded to arise, from, a

procrastinated period of 41 years hence elapsing since the execution of the sale deed, besides reiteratedly with the predecessor-in-interest of the

plaintiffs, during, his life time never claiming automatic vestment of statutory proprietary rights vis- a-vis the suit khasra numbers, and, thereupon they

concluded that the triplicate aforesaid trite tests, remaining unsatiated, hence, declined relief to the plaintiff.

4.This court, however, dis-concurs with the concurrent findings recorded by both the learned courts below, and, the reason for making dis-

concurrence(s), is embodied in (a) of with prima facie the jamabandis appertaining, vis-a-vis    the apt immediately prior to, hencecoming into

force of H.P. Tenancy and land Reforms Act, and, theirs rather prima facie making a clear depiction(s) of, one Hans Raj, the predecessor-in-interest

of the plaintiffs, being reflected as a gair maurusi vis-a-vis the suit khasra numbers, (b) thereupon, probative vigour thereof was enjoined to be imputed

sanctity, (c) especially at the stage of any pronouncement being made upon an application, cast under the provisions of Order 39, Rules 1 and 2 of the

CPC, (d)conspicuously, when thereat the presumption of truth gathered by them remained uneroded, and, was erodable only upon apposite cogent,

rebuttal evidence thereto, being adduced by the defendant, during, the course of progress of trial, of the suit (e) and also, with, the provisions of the

Himachal Pradesh Tenancy and Land Reforms Act, coming into force, importantly prior to the execution of the apposite sale deed, and, when in

contemporaneity thereof, the conferment of proprietary rights upon the predecessor-in- interest, of, the plaintiffs, namely, one Hans Raj, was,

automatic, dehors no order of mutation being recorded by the Revenue Officer concerned, (f) thereupon, when the predecessor-in-interest, of the

plaintiffs, hence, acquired automatic statutory proprietary rights vis-a-vis the suit kahsra numbers, and, with one Phoola Ram, Ghan Shayam and Sada

Nand and Om Prakash, rather, subsequent hereto, executing a sale deed vis-a-vis him, vis-a-vis the same suit khasra numbers, (g) thereupon, any

attraction, of, the principle of estoppel, and, the embargo of estoppel, for hence baulking the plaintiffs, to cast a challenge vis-a-vis the suit khasra

numbers, sparked, by the predecessor-in-interest of the plaintiffs, during, his life time hence not making any challenge vis-a-vis the sale deed, and, a

challenge rather being made belatedly after 41 years elapsing, since its execution, rather contrarily hence being, nowat, neither attractable nor its

fettering effects, vis-a-vis no challenge being made vis-a-vis the validity, of the sale deed, was, enjoined to be encumbered upon plaintiffs.

Predominantly, with, prima facie, the predecessor-in-interest, of, the plaintiffs, acquring, by operation of law, right, title or interest vis-a-vis the suit

khasra numbers, rendered hence the vendors, of the apposite sale deed, to, be prima faice disempowered, to receive the sale consideration from him,

and, to also execute a registered deed, of, conveyance with one Hans Raj. In sequel, the operation of or the applicability hereat of the principle of

estoppel, by the courts below, is both, an erroneous, and, a fallacious approach, adopted by them, for forestalling relief upon the apposite application

vis-a-vis the plaintiffs, and, also, hence, in the learned Courts below recording dis-affirmative findings vis-a-vis the afore extracted triplicate tests,

governing the declining or affording of relief of ad interim injunction, apparently hence mis-manoeuvred themselves, besides visibly rendered both inapt

besides insagacious verdicts.

5.Imminently, (a) the learned Appellate Court, has over emphasized upon the principle, of, estoppel, arising from a procrastinated challenge being

made vis-a-vis the apposite sale deed, hence, has misdirected itself, whereas, the vigour of the aforeaid principle was both blunted, and, subsumed, by

the preeminent principle, of , their being no estoppel against operation,      of, law, and, of statutes, especially also, of, predominant

prevalence, of statutes, carrying a concomitant, effect, of, hence disabling the vendors, of the apposite sale deed, to make its execution vis-a-vis one

Hans Raj. (b) thereupon prima facie with the sale deed being vis-a-vis part, of, suit khasra numbers, hence, at its inception, rather being afflicted with

a vice of fictitiousness, (c) whereupon also upon detections thereof, even, if belatedly, the suit may be prima facie maintainable.

6.Be that as it may, for not disturbing equities, till a pronouncement is made, upon, the apposite Civil Suit, it is deemed fit, just, and, appropriate, and, in

the interest of justice, that the parties be directed to maintain status quo qua nature and possession of the suit land till the final disposal of the main suit,

and, also the undivided nature of the suit property shall remain intact, till the final disposal of the suit. Consequently the instant petition is allowed and

the impugned orders are set aside. In sequel, the plaintiffs'/petitioners' application, cast under the provisions of Order 39, Rules 1 and 2 CPC, is

allowed, and, the parties are directed to, maintain status quo qua nature, and, possession of the suit land till the final disposal of the main suit, also, the

undivided nature of the suit property shall remain intact, till the final disposal of the suit. The parties are directed to appear, before, the learned trial

Court on 8th May, 2018. However, it is made clear that the observations made hereinabove shall have no bearings on the merits of the case. No order

as to costs. All pending applications also stand disposed of . Records be sent back forthwith.