Shri Pardeep Kumar Sain and Others vs Shri Krishan Dass and Others

Kuldip Singh, J.—The defendants No.1 to 8, 10 to 13 have filed this appeal against judgment, decree dated 13.8.2001 passed by learned Addl. District Judge, Shimla, camp at Rohru in Civil Appeal No. 41-S/13 of 2000, setting aside judgment, decree dated 2.12.1999 passed by learned Sub Judge Ist Class, Court No.1 Rohru in Civil Suit No.96-1 of 1999, 46-1 of 1997, 151-1 of 1998. The facts in brief are that Shishi Ram predecessor in interest of respondents No.1 to 4 had filed a suit for declaration against appellants and respondent No.6 that he was owner in possession of land comprised in khasra No. 165 old, (1451 new) measuring 0-05-80 hect. situated in Chak Jakhnoti, Tehsil Chirgaon. The revenue entry showing others in column of ownership and respondent No.6 in possession is wrong. Shishi Ram died during the pendency of suit and his legal representatives were brought on record.

It has been alleged that partition took place between Shishi Ram and Shiv Sukh about 60 years back, the suit land fell to the share of Shishi Ram and he remained in exclusive ownership and possession of the suit land. Shiv Sukh died, leaving behind his sons Amar Sain, Nazar Mal, Thakur Sain and Kundan Lal. Thakur Sain and Nazar Mal made no interference, therefore, they were not impleaded as parties. Amar Sain and Kundan Lal died, they are survived by appellants and respondent No.5. Shishi Ram had three sons and all of them had been living separately but no partition took place between Shishi Ram and his sons. The respondent No.6 in connivance with settlement staff got himself recorded in possession of the suit land, whereas the suit land was in exclusive possession of Shishi Ram. The entry showing Thakur Sain, Amar Sain, Nazar Mal etc. as co-sharers is wrong in view of partition between Shiv Sukh and Shishi Ram, the suit land has fallen to Shishi Ram.

It has been alleged that on taking undue advantage of wrong entries in the revenue record the appellants and respondents No.5, 6 interfered in the possession of Shishi Ram. In these circumstances, suit for declaration and injunction was filed.

The appellants contested the suit and filed written statement. The respondents No.5,6 were proceeded exparte. In the written statement appellants No.1 to 12, took preliminary objections that without seeking relief of possession the suit is not maintainable, the objections of maintainability, suppression of material facts, valuation were also taken. It has been pleaded that Shishi Ram was an old man of 85 years, he was bed ridden and the suit was not filed with his consent. The appellant No.1 is entitled to protection u/s 53A of the Transfer of Property Act.

On merits, it has been contended that in the year 1983 the suit land was given by Shishi Ram to his son respondent no.6 Kanwar Singh in family partition, Kanwar Singh remained in possession of land till 1996 when he sold the suit land to appellant No.1 for a consideration of Rs. 6000/-. In this way, appellant No.1 alongwith his family members is in possession of the suit land. It has been denied that appellants are interfering in the possession of Shishi Ram or his successors. In fact Shishi Ram was not in possession and therefore, there was no question of interference in his possession. It has been pleaded that Shishi Ram had taken contradictory pleas. The submission was made for dismissal of the suit.

The replication was filed. On the pleadings of the parties, the following issues were framed:�

Whether the plaintiff is absolute owner in possession of the suit land bearing K.K. No.31/68 min, khasra No.165 old and 1451 new? OPP

Whether the entry showing defendant No.14 in the column of possession and other co-sharers in the columns of ownership is wrong, null and void? OPP

Whether the plaintiff is entitled to the relief of permanent prohibitory injunction? OPP

Whether the suit of the plaintiff is not maintainable? OPD

Whether the suit of the plaintiff is hit by Section 34 of Specific Relief Act? OPD

Whether the plaintiff has got no enforceable cause of action to file the present suit? OPD

Whether the suit of the plaintiff is not properly valued for the purpose of court fee and jurisdiction? OPD

Whether the defendant No.1 is entitled to protection u/s 53-A of Transfer of Property Act? OPD

Relief.

The issues Nos.1,3,4,7,8, were answered in negative, issue Nos. 5,6 in affirmative, issue No.2 partly in affirmative and partly in negative. The suit was dismissed on 2.12.1999. The appeal was filed, which was allowed on 13.8.2001 by learned Addl. District Judge, Shimla, camp at Rohru. The judgment, decree dated 2.12.1999 of the trial Court were partly set aside, the suit was decreed to the extent that Shishi Ram was held to be joint owner in possession of the suit property. The entry showing respondent No.6 to be in exclusive possession was held to be null and void and not binding on Shishi Ram and his successors.

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

Whether document Ex.DW-2/A has wrongly been ignored and rejected by the Court below being hit by section 17 of the Registration Act and the Stamp Act or whether it is just a memorandum of partition affecting severance of joint status between the parties and if so to what effect?

Whether the present suit in its present form was maintainable in the face of document Ex.DW2/B, that is, Sale Deed with respect to the suit land in favour of Appellant No.1 executed by defendant No.14 Kanwar Singh without first getting it set aside?

Is a suit for mere declaration competent when the plaintiffs are out of possession of the suit land?

Whether in the present case the First Appellate Court has discarded and ignored the relevant and admissible evidence and based his decision on immaterial and irrelevant and in admissible evidence and further has also grossly misread the evidence and misconstrued the law resulting into palpably illegal and erroneous findings and if so to what effect?

Heard. It has been submitted on behalf of the appellants that learned Addl. District Judge has erred in reversing the well reasoned judgment of the trial Court. The family settlement Ex.DW�2/A has been wrongly rejected by the learned lower appellate Court. The case of appellant No.1 on the basis of sale deed Ex.DW-2/B, has been wrongly disbelieved. Shishi Ram in family partition had given suit land to respondent No.6 who sold the suit land to appellant No.1 vide sale deed Ex.DW-2/B. The learned Addl. District Judge has ignored the admissible evidence in reversing the judgment, decree of the trial Court. The suit for declaration was itself not competent when the respondents No.1 to 4 were out of possession. The learned counsel for respondents No.1,2 and 4 has supported the impugned judgment, decree. He has submitted that Ex.DW-2/A is inadmissible. The appellant No.1 on the basis of sale deed Ex.DW-2/B at the most is a co-sharer. He has submitted that no fault can be found with the impugned judgment, decree.

The substantial question of law No.3 is taken first for determination. The suit was filed by Shishi Ram for declaration and injunction. Shishi Ram died during the pendency of the suit and his legal representatives were brought on record. In the suit Shishi Ram claimed ownership and possession of the suit land and he had prayed injunction as consequential relief. It has not been pointed out how the suit filed by Shishi Ram was not competent seeking declaration and injunction. The suit is not for mere declaration, it is also for consequential relief of injunction. The learned Addl. District Judge has also found possession of the successors of Shishi Ram on the suit land and therefore, he has granted the relief of injunction also. The suit for declaration and injunction is competent. It was not necessary for Shishi Ram and his successors to seek relief of possession when they were already in possession. The substantial question of law No.3 is decided against the appellants.

The substantial question of law Nos.1,2 and 4 are taken up collectively for determination, these substantial questions of law are interconnected. The case of the appellants is that respondent No.6 has claimed title over the suit land on the basis of family settlement Ex.DW-2/A. I have gone through Ex.DW-2/A. The perusal of Ex.DW-2/A reveals that it is not a record of past transaction, rather the property was allegedly partitioned through Ex.DW-2/A which admittedly is not registered. In these circumstances Ex.DW-2/A is inadmissible in evidence and cannot be relied to infer exclusive title of respondent No.6 Kanwar Singh over the suit property.

The connected case of the appellants is that respondent No.6 Kanwar Singh sold the suit property to appellant No.1 vide sale deed Ex.DW-2/B. The sale of the suit property by respondent No.6 Kanwar Singh in favour of appellant No.1 has no bearing over the rights of Shishi Ram and his successors as co-sharers on the suit land. The sale of suit property by respondent No.6 kanwar Singh in favour of appellant No.1 is through Ex.DW-2/B. The appellant No.1 on the basis of sale deed Ex.DW-2/B at the most is a co-sharer and not in actual possession of suit property when vendor of appellant No.1 was not himself in actual physical possession of suit land.

There is no force in the contention of learned counsel for the appellants that Ex.DW-2/A is admissible document and has been wrongly discarded by learned Addl. District Judge in evidence. It has been established on record that Ex.DW-2/A is not a memorandum of past transaction but a document through which the property was allegedly partitioned. Ex.DW-2/A an unregistered document, therefore it has rightly been ignored by learned Addl. District Judge and to this extent no fault can be found in the impugned judgment, decree. No specific misreading, misconstruction of any oral and documentary document has been pointed out. The learned Addl. District Judge has rightly appreciated the material on record both on facts and in law. There is no merit in the appeal. The substantial questions of law No.1,2 and 4 are decided against the appellants.

No other point was urged. The result of above discussion, appeal fails and is accordingly dismissed with no order as to costs.