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2015 Supreme(HP) 395
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rajiv Sharma, J.
Chobe Ram - Appellant
Versus
Chander Kala & ors. - Respondents
RSA No. 347 of 2003.
Decided On: 6-5-2015.
Advocate Appeared:
For the appellant(s):Mr. Jagan Nath, Advocate, vice Mr. Anand Sharma, Advocate.
For the respondent:Mr. T.S.Chauhan, Advocate, for respondent No. 1(d). None for respondents No. 1(a) to 1(c) & respondent No.2.
An affidavit must be pleaded and proved in accordance with the law to be admissible as evidence.
Headnote:KEYWORD - Property ownership Subject: Dispute over possession of a house and land None mentioned The plaintiffs filed a suit for possession of a house and land, claiming ownership based on land records. The defendants contested the suit, denying the plaintiffs' ownership and possession. The trial court dismissed the suit, but the appellate court partially allowed it. The main issue in this appeal was the admissibility of an affidavit, which the appellate court relied on to support the plaintiffs' claim. The court found that the affidavit was not pleaded or proved in accordance with the law and, therefore, could not be considered as evidence. The court also noted that the plaintiffs failed to make specific averments in the plaint regarding the affidavit. As a result, the court allowed the appeal, restoring the trial court's judgment and setting aside the appellate court's decision.
Fact of the Case:
The plaintiffs filed a suit for possession of a house and land, claiming ownership based on land records. The defendants contested the suit, denying the plaintiffs' ownership and possession.Finding of the Court:
The court found that the affidavit relied upon by the appellate court was not pleaded or proved in accordance with the law and, therefore, could not be considered as evidence. The court also noted that the plaintiffs failed to make specific averments in the plaint regarding the affidavit.Ratio Decidendi:
The court held that in order for an affidavit to be admissible as evidence, it must be pleaded and proved in accordance with the law. The court also emphasized the importance of making specific averments in the plaint regarding any documents relied upon. Final Decision: The court allowed the appeal, restoring the trial court's judgment and setting aside the appellate court's decision.1. This regular second appeal is directed against the judgment and decree of the learned District Judge, Kullu, H.P. dated 6.6.2003, passed in Civil Appeal No.09 of 2002.
2. Key facts, necessary for the adjudication of this regular second appeal are that the predecessor-in-interest of the plaintiffs, namely, Sh. Poshu Ram, has filed suit for possession of house shown in the site plan attached with the Plaint and for recovery of Rs. 500/- per month by way of mesne profit for the use and occupation of the house in suit and also for permanent prohibitory injunction. According to the plaintiffs, the land measuring 9 biswas comprising in khata khatauni No. 428 min/503 min, Kh. No. 555, situated in Phati Mohal, Kothi Khokhan, Tehsil and District Kullu, is recorded as Phati Abadi which was owned and possessed by the plaintiff as shown in the copy of jamabandi for the year 1993-94 and on the portion of this land a house of plaintiff measuring 27 x 14 Haath is also standing and that adjoining to the said land and house of the plaintiff abuts land comprising Kh. No. 551 and 552 which was also owned and possessed by the plaintiff over which the fruit bearing orchard of the plaintiff is also standing. An agreement was entered into between the plaintiff and defendant No. 1 to sell the fruit crop of the orchard comprising Kh. No. 551 and 552 for the fruit seasons from 1997 to 2001 for consideration of Rs. 50,000/- and Rs. 40,000/- was payable by the defendant No. 1 to the plaintiff on or before 10.7.1997. The defendant has committed breach of the agreement. The defendant No. 1 has requested the plaintiff to allow him to keep some bardana in suit house and to allow defendant No. 2 to keep him as his Chowkidar, namely Sh. Purkhu. The plaintiff granted licence and permission to defendant No. 1 to use and occupy the house for two months w.e.f. 10.4.1997 to 9.6.1997. He was also entitled to recover Rs. 500/- towards mesne profits.
3. The suit was contested by the defendants. According to them, the original plaintiff was neither owner nor in possession of the property in suit and the site plan was not correct. The house did not exist on the abadi comprising Kh. No. 555. It is also denied that on the request of defendant No. 1, the original plaintiff allowed defendant No. 1 to use and occupy the house as licensee for two months. It is also contended that since the original plaintiff has no right, title or interest over the suit land nor was owner-in-possession of the property in suit. Infact, the plaintiff was not residing or right holder of Phati Mohal. He was resident of Phati Balh. The defendant No. 1 was resident and right holder of Phati
Mohal from the time immemorial. The father of defendant No. 1 has constructed house 22 years back on the portion of abadi in suit land comprising Kh. No. 555.
4. The replication was filed by the plaintiff. The learned Senior Sub Judge, Kullu, H.P. framed the issues on 17.1.1998. The learned Senior Sub Judge, Kullu, H.P., dismissed the suit on 19.12.2001. Sh. Chobe Ram, feeling aggrieved, preferred an appeal before the learned District Judge, Kullu. The learned District Judge, Kullu, partly allowed the same on 6.6.2003. Hence, this regular second appeal.
5. This Regular Second Appeal was admitted on the following substantial question of law on 25.5.2004:
“1. Whether document/affidavit Ext. PW-7/A could not have been read in evidence by the learned first appellate Court as the same was not pleaded and proved in accordance with law which vitiated the findings arrived at by the learned first appellate Court?”
6. Mr. Jagan Nath, Advocate, for the appellant has supported the judgment and decree passed by the learned Senior Sub Judge, Kullu. He then contended that the affidavit Ext. PW-7/A dated 17.5.1995 could not be read in evidence by the learned first appellate Court since the same was neither pleaded in the plaint nor proved in accordance with law. On the other hand, Mr. T.S.Chauhan, Advocate, has supp
