Jaspal Singh vs Bal Kishan

Dharam Chand Chaudhary, J.—Challenge herein is to the judgment and decree dated 16.05.2001 passed by learned Additional District Judge, Solan, camp Court at Nalagarh in Civil Appeal No. 73-NL/130 of 2000, whereby the judgment and decree passed by learned Sub Judge, Nalagarh, District Solan in Civil Suit No. 229/1 of 1996 has been affirmed and the appeal dismissed.

The plaintiffs are in second appeal before this Court. The bone of contention in the present lis is the land measuring 2 kanals 17 marlas entered in Khewat Khatauni No. 97min/100min, bearing Khasra No. 269 situated in village Ranguwal, Tehsil Nalagarh, District Solan (hereinafter referred to as the suit land). The suit land was in the hands of Suba, the great grand father of the plaintiffs being joint Hindu and coparcenary property during his lifetime. Said Sh. Suba purchased land measuring seven bighas four biswas bearing Khasra Nos. 468, 475 and 476 and one bigha seven biswas bearing Khasra No. 480 from one Shibu of the same village in a sum of Rs. 300/- vide sale deed 29 Asauj 1982 B.K. Daya Ram was survived by defendant No. 6 Dayal Chand (father of plaintiff No. 1) and defendant No. 7 Sita Ram (father of plaintiffs No. 2 and 3) and his widow Smt. Devki, defendant No. 5. Sh. Daya Ram, grand father of the plaintiffs inherited the estate of Suba aforesaid to the extent of half share including the land aforesaid, he purchased from Sh. Shibu. Later on, partition of the estate inherited by Suba in village Rajpura and Ranguwal alongwith his brother Daulat Ram had taken place. Sh. Daya Ram aforesaid became owner of the suit land. Defendants No. 6 and 7 born to Daya Ram aforesaid acquired interest in the suit land by birth as co-parceners in the Joint Hindu Family property in the hands of said Sh. Daya Ram. Plaintiff No. 1 was born on 14.05.1968 to Dayal Chand, defendant No. 6 i.e. during the lifetime of Dayal Chand, who died in the year 1973. Therefore, he was one of the coparcener so far as the suit land is concerned, right from the time when his grand father Daya Ram was alive. The suit land on the death of Daya Ram vested by way of survivorship with plaintiff No. 1 and his father Sh. Dayal Chand, uncle Sita Ram, father of plaintiffs No. 2 and 3 under Section 6 of the Hindu Succession Act, 1956. Irrespective of execution of Will under Section 30 of the Hindu Succession Act by Daya Ram aforesaid in favour of his two sons, defendants No. 6 and 7 to the extent of half share each. The undivided interest of all co-parcenars i.e. defendants No. 6 and 7 and plaintiff No. 1 remained intact, being surviving co-parcenars. Plaintiffs No. 2 and 3 born in the year 1975 and in the year 1986 also constitute co-parcenary with plaintiff No. 1 and defendants No. 6 and 7. Defendants No. 6 and 7, however, without any legal necessity sold the suit land to Sh. Waryam Singh, predecessor-in-interest of defendants No. 1 to 5 in a sum of Rs. 2500/-. The suit land being ancestral and co-parcenary property could have not been alienated by way of sale without legal necessity. The alienation of the suit land by defendants No. 6 and 7 in favour of deceased Waryam Singh has, therefore, been claimed to be wrong and illegal hence not binding on the plaintiffs. They requested the defendants to admit their rights and interest in the suit land being co-parcenars, but of no avail. Therefore, they filed the suit for possession of the suit land and also the relief of permanent prohibitory injunction restraining defendants No. 1 to 5 from alienating the suit land in any manner whatsoever.

Contesting defendants No. 1 to 5 in the written statement have denied the entire case as set out in the plaint being wrong. As per their stand, the property was self-acquired of defendants No. 6 and 7 and defendants No. 6 and 7 were in litigation qua the estate of one Smt. Jiwi qua which Sh. Waryam Singh, predecessor-in-interest of defendants No. 1 to 5 have assisted them financially to prosecute the said proceedings and it is for this reason, they alienated the suit land to Said Sh. Waryam Singh for a sum of Rs. 2500/-. The suit land was never co-parcenary or ancestral property and as Waryam Singh was the bona fide purchaser thereof, hence the suit has been sought to be dismissed.

Defendants No. 6 and 7 in the separate written statement have admitted the case of the plaintiffs, as set out in the plaint and while admitting the alienation of the suit land in favour of deceased Waryam Singh, they came forward with the version that said Sh. Waryam Singh was their friend and also the man of confidence. He prevailed upon them and managed the execution of sale deed of the suit land in his favour without any legal necessity. The consent of plaintiffs was not obtained nor any sanction of the Court sought to alienate the suit land to said Sh. Waryam Singh.

On such pleadings of the parties, learned trial Judge had framed the following issues:

"1. Whether the suit land was co-parcenary property in the hands of defendants No. 6 and 7, as alleged? ...OPP

If issue No. 1 above is proved, whether the sale deed of the suit land executed by defendants No. 6 and 7 in favour of Sh. Waryam Singh, predecessor-in-interest of defendants No. 1 to 5 was legal necessity and for the benefit of estate, as alleged? ...OPD

Whether the predecessor-in-interest of the defendants No. 1 to 5 was bona fide purchaser for valuable consideration of the suit land, as alleged? ....OPD

Whether the plaintiffs are estopped from filing the present suit, as alleged? ....OPD.

Whether the plaintiffs have no cause of action? ....OPD

Whether the plaintiffs have not properly valued the suit? ...OPD

Relief."

Parties were put to trial, who produced evidence oral as well as documentary in support of their case.

Learned trial Court on appreciation of the evidence available on record has concluded that it was the Ruler (Raja of Nalagarh) Ala Malik, whereas, Sh. Suba and for that matter his predecessor-in-interest Daya Ram were Adna Malik and as the proprietary rights were conferred upon Adna Malik on abolition of Ala Malkiyat Rights, Sh. Daya Ram acquired proprietary rights in respect of the estate, he inherited from his father Suba and became absolute owner. Therefore, the property, as per findings recorded by the trial Court in the hands of Daya Ram, the grand father of the plaintiff was his self-acquired property and not ancestral. The trial Court, therefore, dismissed the suit. In appeal, learned lower appellate Court has affirmed the judgment and decree passed by the trial Court and dismissed the appeal.

The legality and validity of the judgment and decree under challenge has been questioned in the present appeal on the grounds inter-alia that the law applicable in this case and also the facts have not been appreciated in its right perspective and the lower appellate Court erroneously dismissed the appeal for want of excerpts showing to prove the characteristics of the suit land to be the co-parcenary property. The law laid in 1998(1) SLJ 423 is stated to be wrongly applied and to the contrary the law laid down in Assa Ram (deceased) through his L.Rs. Ramji Dass and Others Vs. Budh Ram and Others, has erroneously been ignored. Legal evidence cogent and convincing to show that the suit land is co-parcenary has not been taken into consideration. The factum of issue No. 2 has not been decided on merits and rather erroneously as having become redundant is not taken into consideration. The evidence to show that the suit land was sold without legal necessity has also been ignored. Leaned lower appellate Court allegedly erred in raising an adverse inference against defendants No. 6 and 7 on account of they, did not appear in the witness box, as according to plaintiffs, it is they who have challenged the alienation of the suit land in favour of deceased Waryam Singh.

The appeal has been admitted on the following substantial questions of law:

"1. Whether the Ld. Lower Appellate Court was justified in not seeking report on issue No. 2 from the Ld. Trial Court and thereupon deciding the same after inviting objections of the parties, if any, qua findings and report of ld. Trial court on the said issues?

Whether the suit land was and is ancestral and coparcenary property of plaintiff in view of principles of law/ratio laid down in Assa Ram (deceased) through his L.Rs. Ramji Dass and Others Vs. Budh Ram and Others, , decided by this Hon''ble High Court?

Whether principles of law laid down in 1998(1) SLJ 423 of this Hon''ble court in RAVINDER SINGH versus RAGHUNATH SINGH AND OTHERS'' is not distinguishable on facts and circumstances of the present case of appellants/plaintiffs and the same is not authoritative in view of more reasonable authority or ratio laid down in Assa Ram (deceased) through his L.Rs. Ramji Dass and Others Vs. Budh Ram and Others, ?"

During the pendency of the appeal, the parties i.e. appellants-plaintiffs have filed an application under Section 100 read with Section 151 of the Code of Civil Procedure (CMP No. 9857 of 2014) with a prayer for framing additional substantial questions of law and the respondents-defendants under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure (CMP No. 11123 of 2014) for seeking permission to produce by way of additional evidence, jamabandis for the year 1927-28, 1931-32, 1939-40, 1943-44, 1947-48 to show that Raja Sahib Bahadur being Ala Malik was owner of the suit land bearing Khasra Nos. 468, 475 and 476 measuring 7-4 bighas, whereas, Suba, predecessor-in-interest of the plaintiffs and defendants No. 6 and 7 in possession thereof being Adna Malik. While the respondents-defendants have opposed the application filed for framing of additional substantial questions of law on the ground that additional substantial questions of law sought to be framed not at all arise for adjudication in the case in hand and that whatever substantial questions of law arise have already been framed while admitting the appeal. At the same time, appellants-plaintiffs have also opposed the application filed by the respondents-defendants to produce additional evidence on the ground that whatever documents relevant to decide the present lis are already on record and have been got translated from its Urdu version into Hindi. Therefore, the documents now sought to be produced by way of additional evidence are stated to be not required for just decision of this case. It has also been submitted that had these documents been necessary in evidence, the same being available at the time of producing evidence would have been produced at that time. Also that, in case these documents are required to be produced, in that event, case deserves to be remanded to the trial Court or lower appellate Court so that the appellants-plaintiffs will also have the opportunity to rebut the same and the case is decided afresh. Both the applications have also been heard along with the present appeal.

Sh. G.D. Verma, learned Senior counsel while taking this Court to the documentary evidence Ext. P-1 to Ext. P-18 has forcefully contended that suit land being ancestral was co-parcenary property is satisfactorily proved on record and as such the same according to Mr. Verma, could have not been alienated by defendants No. 6 and 7 without any legal necessity. The additional evidence sought to be produced by the respondents-defendants is not required for the just decision of the case, which according to him, can be decided with the evidence already produced by the parties on both sides.

Sh. Ramakant Sharma, learned counsel representing the respondents-defendants has strenuously contended that in Tehsil Nalgarh, it is the Raja Sahib Bahadur, who being the Ala Malik was the owner of the entire land, whereas, the inhabitants in actual possession and cultivating the land in their respective possession were the Adna Malik, irrespective of the nature of their title therein. It has further been contended that the respondents-defendants have been held to be bona fide purchaser of the suit land. The disputed Khasra No. 269 though finds mention in the order of mutation Ext. P-10, however, according to Mr. Sharma, it is not at all proved that this Khasra number was carved out from Khasra Nos. 468, 475, 476 and 480, allegedly purchased by Suba, predecessor-in-interest of the plaintiffs from Shibu vide sale deed Ext. P-1/A. Mr. Sharma further submits that, no doubt, the evidence produced by the appellants-plaintiffs reveal that the suit land purchased by the respondents-defendants was in the ownership and possession of S/Sh. Dayal Chand and Sita Ram, defendants No. 6 and 7, however, the same was part and parcel of the land purchased by deceased Suba vide sale deed Ext. P-1/A, no evidence has come on record.

Before coming to the merits of the case, I would like to consider the applications viz. the one under Section 100 read with Section 151 of the Code of Civil Procedure filed by the appellants-plaintiffs with a prayer to admit the appeal on substantial questions of law detailed therein, in addition to one on which the same was admitted and another under Section 41 rule 27 read with Section 151 of the Code of Civil Procedure for permission to produce the additional evidence. The application filed by the appellants-plaintiffs for framing additional issues can be disposed of with a single line order that in addition to substantial questions of law on which the appeal is initially admitted, the same deserves to be admitted on the substantial question of law (i) also detailed in the application and as regards the remaining questions (ii) to (viii), the same neither are the substantial questions of law nor arise for determination in the given facts and circumstances. The application, therefore, succeeds partly. Consequently, in addition to substantial questions of law already framed in this appeal at the time of its admission, the same is admitted on the following substantial question of law also:

"i) Whether the findings as recorded by both the courts below are vitiated on account of misreading, misappreciation, misconstruction and mis-interpretation of the pleadings of the parties as well as oral and documentary evidence on record and the findings recorded are contrary to the pleadings and evidence on record."

As regards the application for production of additional evidence filed on behalf of respondents-defendants is concerned, such evidence pertains to land bearing Khasra Nos. 468, 475 and 476, allegedly purchased by Suba, predecessor-in-interest of the appellants-plaintiffs from one Shibu vide sale deed Ext. P-1/A. The question of proof of such evidence will arise only if the evidence available on record shows that Khasra No. 269, subject matter of dispute in the present lis is carved out from above Khasra Nos. 468, 475 and 476. This takes us to the merits of the case.

The appellants-plaintiffs claim the suit land to be the Joint Hindu Family property, hence co-parcenary. No doubt, Suba was their great grand-father. The sale deed Ext. P-1/A tells us that said Sh. Suba purchased land bearing Khasra Nos. 468, 475 and 476 measuring 7-4 bighas and land bearing Khasra No. 480 measuring 1-7 bighas from one Shibu. This sale deed is of 29 Asauj 1982 B.K, which corresponds to the year 1925. No evidence has been produced to show that said Shibu was the absolute owner of the land so sold by him to Suba. Mutation Ext. P-18/A was attested and sanctioned in favour of said Sh. Suba, qua the land he purchased vide sale deed Ext. P-1/A. Learned trial Judge has observed in para 8 of the judgment that in Urdu version of Ext. P-1, in column No. 4, Raja Sahib Bahadur has been recorded as Ala Malik and Suba as Adna Malik. Learned trial Judge has further noticed that in Hindi version of Ext. P-1, it is not so recorded. Similarly, in Ext. P-4 and Ext. P-5 also, Raja Sahib Bahadur has been recorded as Ala Malik, whereas, Daya Ram, grand-father of the appellants-plaintiffs and his brother Daulat Ram in possession thereof being Adna Malik. There is no reason to disbelieve the observations so made by learned trial Judge being not assailed any further in appeal before the lower appellate Court and even before this Court also.

Above all, in reply the application (CMP No. 11123 of 2014) filed for seeking permission to produce the additional evidence, the stand of the appellants-plaintiffs is that whatever documents necessary to decide the present lis are already on record and the documents sought to be produced by way of additional evidence are not required. Therefore, it would not be improper to conclude that the land purchased by Suba from Shibu was in his possession, in the capacity of Adna Malik, as it is rather Raja Sahib Bahadur the Ala Malik thereof. This also substantiates the arguments addressed on behalf of the respondents-defendants that in Tehsil Nalagarh, Rulers were sole proprietors of the land being Ala Malik. The Ala Malkiyat Rights had abolished on coming into force the Pepsu Abolition of Ala Malkiyat Rights Act, 1954. The Rulers had the right of reversion of the land given to Adna Maliks and also have the right to receive certain percentage of revenue from the produce. It is on abolition of Ala Malkiyat Rights, the Adna Maliks brought by the Rulers from outside and settled on different parcels of land for the purposes of cultivation acquired titled as absolute owners in the land in their respective shares and the same thereafter came in their hands as their self-acquired property. Thus, vesting of Ala Malkiyat Rights in Adna Malik amounts to enlargement of the estate and conferment of absolute rights in respect of the land in question upon them. This Court while placing reliance on Ranvinder Singh versus Raghunath Singh and others, 1998(1) S.L.J. 423 and in Nachhitar Singh and others versus Budh Singh and others, 1971 PLR 536 has held in Balbir Singh and others versus Gurdev Singh and others, Latest HLJ 2014 (HP) 544, as under:

"19. In Ranvinder Singh''s case (supra), learned Single Judge in view of the categoric findings recorded by learned trial Court that the property only goes to defendant No. 1 in that case stood amalgamated with other property purchased by him as well as the property came to him by way of gift from his mother, lost coparcenary characteristic and as such became self acquired property of the defendants.

If coming to the law laid down by the Division Bench of Punjab and Haryana High Court in Nachhttar Singh''s case (supra), it has been held that the Abolition of Ala Malkiyat Rights creates a new kind of estate in the ''Adna-Malik'' and has altered the nature and characteristic of the land in his hands on coming into operation of the Act ibid. Therefore, the land in Adna Malik''s hand was not held to be ancestral property. This is correct interpretation of law for the reasons that the Rulers were sole proprietors of the land, whereas ''Adna Maliks'' brought by them from outside and settled on different parcels of land for the purposes of cultivation. The Rulers had also the right of reversion and also a right to receive certain percentage of revenue. Therefore, vesting of ''Ala-Malkiyat'' rights in ''Adna-Malik'' amounts to enlargement of the estate and conferment of absolute rights in respect of the land in question upon them. Like Ranvinder Singh''s case (supra) the suit property has been sold/purchased/relinquished partly by the parties amongst themselves and as such no this score also its coparcenary and jointness characteristics amalgamated with the property so purchased/acquired by them and as such the same now cannot be treated to be ancestral and coparcenary. Therefore, learned trial Judge has rightly placed reliance on the ratio of the judgment of learned Single Judge of this Court in Ranvinder Singh''s case (supra), and also that of Division Bench of Punjab and Haryana High Court in Nachhttar Singh'' case (supra). Learned appellate Court has also rightly appreciated the law laid down and discussed the evidence on record in its proper perspective. Therefore, the impugned judgment and decree cannot be said to be legally and factually sustainable. As such, no question of law, much-less substantial questions of law as formulated arises for determination in the present appeal. The same, as such, deserves dismissal. Questions of law formulated above are accordingly answered."

Otherwise also, for the arguments sake, even if it is believed that the suit land was in the hands of Suba, the great grand-father of the plaintiffs as Joint Hindu Family property with their grand-father Daya Ram and their fathers defendants No. 6 and 7 and for that matter, plaintiff No. 1 as coparcenar, the evidence viz. jamabandi for the year 1932-33, Ext. P-1/A, Khatauni Istemal Ext. P-2/A, reveal that Suba as well as Daya Ram, the grand-father of the plaintiffs and his brother Daulatia (Daulat Ram) were owner of the land detailed therein. On the death of Suba, it is aforesaid Daya Ram and Daulat Ram inherited his estate vide mutation Ext. P-3. In these documents, there is no mention of the land bearing Khasra Nos. 468, 475, 476 and 480, allegedly purchased by Suba from Shibu nor is there any mention of land bearing Khasra No. 269, the subject matter of dispute in the present lis. Mutations Ext. P-3/P-7 reveal that on the death of Daya Ram, his estate was inherited by his sons Dayal Chand and Sita Ram, defendants No. 6 and 7. The land purchased vide sale deed Ext. P-1, Sita Ram find mention in jamabandi Ext. P-5/A and jamabandi for the year 1935-36 Ext. P-9 in the name of Suba and Daya Ram, the grand-father of the plaintiffs respectively.

The suit land bearing Khasra No. 269 measuring 2 kanals 17 marlas find recorded in the name of defendants No. 6 and 7 in the jamabandi for the year 1979-80 Ext. P-13, however, it is part of the land bearing Khasra Nos. 468, 475, 476 or 480 purchased by Suba from Shibu or any other land in the ownership and possession of Suba, no evidence has come on record. As a matter of fact, though in the jamabandi for the year 1984-85, Ext. P-14, the suit land bearing Khasra No. 269 has been recorded in the ownership and possession of defendants No. 6 and 7 in equal shares, however, in order to show that it is the ancestral and co-parcenary property and was in the hands of deceased Suba, one of the co-parceners along with Daya Ram, the grand-father of the plaintiffs and his brother Daulat Ram and also defendants No. 6 and 7 as well as plaintiffs, the proof qua its characteristics viz. old Khasra number(s) in the hands of Suba, the great grand-father, grand-father and fathers of the plaintiffs should have been proved viz-a-viz its old and new Khasra numbers. Such evidence is lacking on record. In the evidence, Khasra No. 269 came only to be reflected in jamabandi Ext. P-13 for the first time and thereafter in jamabandi Ext. P-14. What was its old Khasra number, there is no evidence. Whether Khasra No. 269 also constitutes estate of deceased Suba, there is again no evidence. It is, therefore, not established that the suit land bearing Khasra No. 269 was ancestral and coparcenary property and could have not been sold to respondents-defendants without any legal necessity.

The law laid down by a Co-ordinate Bench of this Court in Assa Ram (deceased) through his L.Rs. Ramji Dass and Others Vs. Budh Ram and Others, is, therefore, not at all attracted in this case and the point in issue is covered in favour of respondents-defendants by the judgments of this Court in Balbir Singh and others versus Gurdev Singh and others, Latest HLJ 2014 (HP) 544, in which Ranvinder Singh versus Raghunath Singh and others, 1998(1) S.L.J. 423 has also been relied upon. Substantial questions of law No. 2 and 3, therefore, stand answered accordingly.

Since there is no link evidence to show that the disputed Khasra No. 269 is carved out from Khasra Nos. 468, 475 and 476, therefore, the additional evidence sought to be produced by the respondents-defendants is of no help to decide the point in issue in the present lis. Otherwise also, when on appreciation of the evidence, the findings recorded by the trial Court that Raja Sahib Bahadur, Nalagarh has been recorded as Ala Malik in Ext. P-1/A, Ext. P-4 and Ext. P-5, whereas, predecessor-in-interest of the plaintiffs including Suba, Adna Malik, have not been specifically challenged by the appellants-plaintiffs, therefore, on this score also, no additional evidence is required to be produced. The application (CMP No. 11123 of 2014), therefore, stands dismissed accordingly.

Now, if coming to the grouse qua findings on issue No. 2, which form substantial question of law (i) supra. The trial Court has decided this issue against the defendants merely that below para No. 7, this issue has been shown to have turned redundant, no prejudice can be said to be caused to the plaintiffs'' case, particularly when the aspect of the legal necessity is not relevant as the suit land is neither ancestral nor coparcenary. The sale of the suit land by defendants No. 6 and 7 in favour of Waryam Singh, the predecessor-in-interest of defendants No. 1 to 5 is absolutely legal and valid. The present is also not a case where it can be said that the evidence comprising oral as well as documentary has been misread and misconstrued.

Perusal of oral evidence, as has come on record by way of testimonies of plaintiff No. 1, who has stepped in the witness box as PW-3 and that of defendant No. 4, Kishan Chand, who has stepped in the witness box as DW-1 is equally balanced. PW-1 Chajju Ram is the Registration Clerk, who has proved the sale deed Ext. P-1, whereas, PW-2 Hem Raj, Patwari, has proved the Hindi version of Ext. P-1/A and Ext. P-2/A to Ext. P-6/A of the documents Ext. P-2 to Ext. P-6, which are in Urdu. There is no question of misreading or mis-appreciation of oral evidence. As regards, the documentary evidence, the same on reappraisal has been properly appreciated while dismissing the suit. Therefore, substantial question of law at Serial No. 1 and additional substantial question of law supra also not arise in this case.

The cumulative effect of the discussion hereinabove would be that the appeal fails and the same is accordingly dismissed. Pending application(s), if any, shall also stand disposed of.