Vidya Devi vs Ram Lal

Tarlok Singh Chauhan, J.—The defendant/appellant has filed this appeal against the concurrent findings of fact recorded by the learned Courts below. The facts of the case may be noticed as follows:-

One Shri Daya Ram, predecessor-in-interest of respondents No. 1 to 4 filed suit for permanent prohibitory injunction against appellant on the grounds that one Smt. Dwarki and Shri Shibia were owners in equal shares with possession of Khasra No. 58, measuring 1 bigha and Khasra No. 112, measuring 16 biswas kita 2, total measuring 1 bigha 16 biswas situated at Mauja Ghandel, Pargana Nerwal, Tehsil and District Shimla, H.P. It was further alleged that Shri Sahiba bequeathed his share in the property comprised in Khasra No. 58 and 112 in favour of his sons Shri Mast Ram and Devi Ram vide Will dated 2.10.1978 ad after death of Sh. Sahiba property was mutated in the name of his sons. It was further pleaded that Shri Mast Ram was issueless and he had by virtue of Will dated 26.12.1982 bequeathed his 1/4th share in favour of Shri Jama Dass respondent No. 6 including his share in Khasra No. 58 and 112 and the remaining share was bequeathed by Shri Mast Ram in favour of one Shri Devi Ram, who was originally impleaded as defendant No. 2 in the suit but his name was ordered to be deleted in the lower appellate Court vide order dated 26.5.1999. It was the case of the respondents that after death of Shri Mast Ram, property was mutated on the basis of his will but due to inadvertence, Khasra No. 58 was not incorporated in the mutation No. 294 attested after the death of Shri Mast Ram. It was further pleaded that Smt. Dwarki Devi also executed Will dated 20.5.83 bequeathing her property in favour of Shri Devi Ram and Jamna Dass and mutation No. 293 of Mauja Ghandal was attested on 26.9.83 to give effect to the will of Smt. Dwarki Devi and in this mutation also due to oversight it was alleged by plaintiff that Khasra No. 58 could not be included. It was further the case of the plaintiff that respondent Kalavati was owner of Khasra No. 159 measuring 1 bigha 7 biswas and Khasra No. 560/177, measuring 6 biswas situated in Mauja Ghandal, Tehsil and District Shimla and she vide registered gift deed dated 29.1.86 gifted above property in favour of predecessor-in-interest of plaintiff and put him in possession of this property and on the basis of the gift deed mutation No. 301 was attested and predecessor-in-interest of respondents No. 1 to 5 become absolute owner in property which was earlier owned by Smt. Kalavati. It was further pleaded by plaintiff that this Khasra No. 159 was exchanged by predecessor-in-interest of plaintiff with Khasra No. 58 and part of Khasra No. 112 owned by Shri Devi Ram, who was originally arrayed as defendant No. 2, in the suit and the said Shri Devi Ram gave in exchange land measuring 10 biswas comprised in Khasra No. 112/1, and land measuring 1 bigha comprised in Khasra No. 58, total measuring 1 bigha 10 biswas with the plaintiff. In this manner, plaintiff become owner of 1 bigha 10 biswas of land and factum of this exchange was reported to the Patwari on 28.4.87 for attestation of mutation and mutation No. 306 was entered on the basis of this exchange was however rejected by the Ld. Assistant Collector IInd Grade on 29.4.1987. The plaintiff challenged this order dated 29.4.87 by way of the suit and further pleaded that defendant No. 1 is interfering in ownership and possession of the plaintiff over Khasra No. 58 and 112/1, total measuring 1 bigha 10 biswas.

The suit was contested only by defendant No. 1, Smt. Ramku resisted and contested the suit and averred that Sh.Surtia-husband of the defendant was owner in possession of suit land during his life time. The defendant was also possessing the suit land along with her husband. The entries in the revenue record contrary to this suit were wrong. Sh. Shibia had no right and title over the suit land and no will could be executed by late Sh. Shibia nor such Will was executed by him. The Will if any was illegal and wrong. Sh. Mast Ram had also not executed any valid will and the mutations were wrong. Smt. Dwarki had also not executed any Will in favour of defendants No. 2 to 3 and mutation was also wrong. The defendants No. 2 and 3 never acquired any interest in the suit land. Smt. Kalawati defendant No. 4 was not daughter of late Sh. Surtia and had no interest in the suit land and gift in question was illegal and void and present suit was filed by the plaintiff in collusion with defendant No. 4. The defendant was in possession of the suit land as owner after the death of her husband and during his life time late Sh. Surtia was owner in possession of the suit land by virtue of adverse possession. IN alternative, the defendant averred that late Sh. Surtia was inducted as tenant over the suit land by late Sh. Shiibia and Smt. Dwarki and after coming into force of H.P. tenancy and land reforms Act the defendant become owner of the suit land and after his death the defendant was owner in possession of the suit land. No legal and valid exchange had taken place. Legal objections about limitation was also raised. The defendants No. 2 to 4 admitted the case of the plaintiff as per statements recorded dated 26.4.87.

In replication, the plaintiff controverted the allegations of the written statement and re-asserted the averments contended in the plaint. The learned trial Court vide orders dated 27.4.94, 1.12.94 and 9.12.94 framed the following issues:-

"1. Whether the plaintiff is owner in possession of suit land? OPP

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

Whether the suit is not within time? OPD

Whether the defendant has become owner of suit land by adverse possession? OPD

Whether late Sh. Surtia was in possession of suit land as a tenant under Sh. Shibia and Dwarki. If so, to what effect? OPD

Relief."

After recording evidence, the learned trial Court decreed the suit. Aggrieved by the judgment and decree passed by the learned trial Court, the defendant preferred an appeal before the learned lower Appellate Court and the same also was dismissed. Undeterred, the defendant has preferred the present appeal. This Court admitted the appeal on the following substantial question of law:-

"Whether in the present suit, title of defendants 2 and 3 to the suit property could have been determined by the Court below?"

At the outset, it may be pointed out that though this Court has framed the aforesaid substantial question of law at the time of admission of the appeal, but from the records, it appears that such point was not even raised before the learned first Appellate Court and therefore, to my mind, the appellant is now precluded and estopped from raising such contention. In taking this view, I am supported by the judgment of Hon''ble Supreme Court in Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., :-

"14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstances of each case whether paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."

It would appear that the plaintiffs had sought to establish their title over the suit land, for which reference to the title of their predecessor was essentially required to be mentioned. But then, the plaintiffs had not sought any declaration of the title of defendants No. 2 and 3. If during the course of trial, the title of defendants No. 2 and 3 was required to be looked into or even determine, then there was no bar on the Court to have determined the same, because as observed earlier, it was not that the plaintiffs had sought declaration of title of the defendants No. 2 and 3, but had only made a reference to the same in their pleadings so as to establish their case. Obviously, the learned trial Court on the basis of the pleadings would be required to determine all questions of facts which arise for consideration even if the same pertain to the right, title or interest of the defendants. This Court cannot be unmindful of the fact that there may be instance where a party, who has conveyed the property, may still retain some portion thereof and be an illegal beneficiary of the same and in such circumstances obviously that party would not approach the Court. It is then the party who is adversely affected will have to come forward to the Court and set forth his claim and undo the wrong, which may have been committed. In the present case also, the appellant had specifically mentioned that after the death of Sh. Mast Ram on 23.2.1983, mutation No. 294 was though attested on 22.11.1983 in favour of defendants No. 2 and 3, however, due to inadvertence and by mistake only Khasra No. 112 was mutated while Khasra No. 58 was not incorporated.

At this stage, it would be seen that the defendants No. 2 and 3 did not dispute the contention of the plaintiffs and rather admitted the claim of the plaintiffs as per statement recorded by the learned trial Court on 26.4.1983. This being the position, the defendants/appellants cannot question the challenge raised by the plaintiffs regarding mutation No. 294.

The appellants have tried to keep this litigation alive on one pretext or the other and have been successful in prolonging it for over 27 years. This observation is being made, keeping in view the nature of defence set out by the defendants/appellants in their written statement. In paragraph 1 of the written statement, the defendants have claimed themselves to be the owners, whereas in paragraph 5, a plea of adverse possession has been raised, yet again in paragraph 5A, the defendants/appellants have claimed themselves to be the tenants, who by operation of law have become the owners of the land. Indisputably, all the aforesaid pleas are self contradictory, which clearly establish the fact that the appellants on one pretext or the other wanted to keep alive the present litigation. The substantial question of law is accordingly answered against the appellants.

In view of the aforesaid observations, I find no merit in the present appeal and the same is dismissed, leaving the parties to bear their own costs.