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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Sandeep Sharma, J.
Tot Ram Son of Sh. Hukmu (Since Deceased) Through His Legal Representatives and Ors. – Appellants
Versus
Smt. Purkhi @ Piuli Widow of Sh. Thakur Dass (Deleted) and Ors. – Respondents
Regular Second Appeal No. 8 of 2006
Decided On : 08-12-2021
Indian Succession Act - Section 63 - transfer of Property Act - Section 41 - Civil Procedure Code,1908 - Section 100 and Order XLI, rule 27 - Suit for declaration with consequential relief of permanent prohibitory injunction - Forged and fictitious Will - Allegedly executed favour and on the basis of said forged and fictitious Will, in connivance with revenue officials, got mutation attested and sanctioned in his favour - Plaintiffs also claimed that on the strength of forged and fictitious Will and mutation, defendant executed bogus and void sale sold two Bigha of land out of land comprised without any right, title or interest - suppression of true and material facts and limitation - On merit, he denied and claimed that he died Defendant No.1 pleaded that Thakur Dass has executed a valid and last Will services rendered by defendant No.1, in his favour, out of love and affection, on strength of which he has become absolute owner in exclusive possession of the suit land, as such, plaintiffs and proforma defendants have no right, title or interest in suit land – Held, High Court proceeded to observe that the first plaintiff has earmarked schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs’ right cannot be granted. In exercise of jurisdiction under Section 100 CPC - High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts - High Court unless findings so recorded are shown to be perverse - There can be no quarrel (dispute) with regard to aforesaid observation made by the Apex Court and true it is that in normal circumstances High Court while exercising powers under Section 100 CPC - findings recorded by the three courts on facts are based on appreciation of evidence undertaken by three Courts, are essentially in the nature of concurrent findings of fact and, therefore, such findings are binding on this Court - learned Courts below can not be interfered with unless same are found to be perverse to the extent that no judicial person could ever record such findings has been discussed in detail, there is no perversity as such in the impugned judgments and decrees passed by learned Courts rather same are based upon correct appreciation of evidence – Appeal dismissed.
JUDGMENT :
CMP No. 63 of 2006
By way of instant application filed under Order XLI, rule 27 CPC, appellant has sought to place on record copy of mutation No. 6309, dated 21.2.2001 (Annexure A-1) and copy of Jamabandi for the years 2000-2001 (Annexure A-2). Appearing respondents have filed reply to the application, opposing the prayer made on behalf of the appellant(s).
2. From the pleadings of the parties, this court finds that the document sought to be placed on record are germane to the decision of the instant Regular Second Appeal as such, same are ordered to be taken on record. Application stands accordingly disposed of.
RSA No. 8 of 2006
3. By way of instant Regular Second Appeal filed under S.100 CPC, challenge has been laid to judgment and decree dated 29.12.2005 passed by learned District Judge, Kullu, District Kullu, Himachal Pradesh in Civil Appeal No. 81/2005, whereby judgment and decree dated 12.8.2005 passed by learned Civil Judge (Senior Division), Lahul & Spiti at Kullu, Himachal Pradesh in Civil Suit No. 71/2002, has been partly modified.
4. Precisely, the facts of the case, as emerge from the record, are that respondents Nos. 1 to 5-plaintiffs (hereinafter, ‘plaintiffs’), filed a suit for declaration with consequential relief of permanent prohibitory injunction against defendant No.1 Ram Lal, proforma respondents Nos. 3 and 4, and the appellant-defendant No. 2 (hereinafter, ‘defendant No.2). During the pendency of the appeal before this court, the original appellant/defendant No.2 Tot Ram, died and now his legal representatives are pursuing the appeal.
5. Plaintiffs claimed before learned trial Court that defendant No.1 Ram Lal and proforma respondents Nos. 6 to 8 are entitled to be declared as co-owners-in-possession of 1/8th share measuring 2-11-0 Bigha out of total land comprised in Khata Khatauni No. 961/1552, Khasra Nos. 29, 30, 31, 188, 222, 225, 257, 318, 327, 334 and 341 Kita-11, measuring 20-8-0 Bigha, 1/8th share measuring 0-5-0 Bigha out of land comprised in Khewat Khatauni No. 962/1554, measuring 2-1-0 Bigha, 795/6330 shares measuring 0-13-0 Bigha out of land comprised in Khewat Khatauni 963/1554, Khata No. 13, measuring 5-6-0 Bigha, as described in the Jamabandi for the years 1995-96, situate in Phati and Kothi Kais, Tehsil and District, Kullu, Himachal Pradesh (hereinafter, ‘suit land’) and Will dated 3.8.1995 (Ext. D-A), set up by defendant No.1 is forged and fictitious and as such, the entries showing defendant No.1 as owner-in-possession are wrong and illegal and further that the sale deed No. 1699 dated 4.12.2001 executed by defendant No.1 in favour of defendant No.2 is invalid and illegal, and the defendants be restrained from making any sort of interference in the ownership and possession of the plaintiffs and proforma defendants over the suit land. It is averred by the plaintiffs that Shri Thakur Dass died intestate on 14.8.1990 leaving behind him, plaintiffs, defendant No.1 and proforma defendants Nos. 3 and 4, as his only legal heirs, who are entitled to succeed to the suit land in equal shares. It is further averred that the mutation No. 625, dated 13.12.1996 on the basis of intestate succession was sanctioned in favour of plaintiffs, defendant No.1 and proforma defendants, in equal shares but defendant No.1, in connivance with the Scribe and the marginal witnesses, set up a forged and fictitious Will dated 3.8.1995 (Ext. DW-3/A), allegedly executed by Thakur Dass in his favour and on the basis of said forged and fictitious Will, in connivance with the revenue officials, got mutation No. 6259 dated 6.11.2001 (Ext. P-2) attested and sanctioned in his favour. Plaintiffs also claimed that on the strength of forged and fictitious Will and the mutation, defendant No.1 executed bogus and void sale deed No. 1699, dated 4.12.2001 (Ext. DW-3/A) and sold two Bigha of land out of the land comprised in Khata Khatauni No. 961/1552 measuring 20-8-0 Bigha, without any right, title or interest, on the basis of
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