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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
SANDEEP SHARMA, J.
SURENDER PAL SON OF SH. DINA NATH - Appellant
Vs.
SH. NIKKA RAM & ANR. - Respondent
REGULAR SECOND APPEAL No.563 of 2005
Decided On : 22-09-2021
Code of Civil Procedure, 1908 - Section 100 - Suit for declaration and possession - Plaintiffs filed suit for declaration against respondents averring therein that plaintiffs are sons of defendant No.2 and they being Hindus constituted a Joint Hindu Family - Plaintiffs claimed that plaintiff and defendant No.2 are governed by Hindu law in matters of alienation of their ancestral joint Hindu family property - Whether sale deed proves that respondent/defendant No.1 did not make any enquiry regarding legal necessity, therefore, sale is void and appellants/plaintiffs are entitled for possession of land - Whether grave prejudice has been caused to appellants/plaintiffs when both courts were laboring under impression that legal necessity was to be proved by plaintiffs, whereas legal necessity is to be proved by defendant – Held, High Court, while excising power under Section 100 CPC, cannot upset concurrent findings of fact unless same are shown to be perverse. In case at hand, this Court while examining the correctness and genuineness of submissions having been made by parties, has carefully perused evidence led on record by respective parties, perusal whereof certainly suggests that Courts below have appreciated evidence in its right perspective and there is no perversity, as such, in the impugned judgments and decrees passed by both Courts below - Moreover, learned counsel representing appellants was unable to point out perversity, if any, in impugned judgments and decrees passed by both Courts below and as such, same do not call for any interference - Court sees no illegality and infirmity in impugned judgments and decrees passed by courts below which otherwise appear to be based upon proper appreciation of evidence and as such, same are upheld – Appeal dismissed.
JUDGMENT :
Instant Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, lays challenge to judgment and decree dated 14.06.2005, passed by learned Additional District Judge, Ghumarwin, District Bilaspur, Himachal Pradesh in Civil Appeal No.285/13 of 2004/ 1999, affirming the judgment and decree dated 17.8.1999, passed by learned Sub Judge, 1st Class, Ghumarwin, District Bilaspur, H.P. in case No.201/1 of 1991, titled as Surender Pal etc. versus Nikka Ram etc., whereby suit for declaration and possession having been filed by the appellants (hereinafter referred to as the plaintiffs), came to be dismissed.
2. Precisely, the facts of the case as emerge from the record are that plaintiffs filed suit for declaration against the respondents (hereinafter referred to as the defendants), averring therein that the plaintiffs are the sons of defendant No.2 and they being Hindus constituted a Joint Hindu Family. Plaintiffs claimed that plaintiff and defendant No.2 are governed by Hindu law in matters of alienation of their ancestral joint Hindu family property. Plaintiffs claimed that suit land measuring 3 biswas, which is 1/120th share of land measuring 18-10 bighas bearing Khasra No. 1011/968/9356, Khata/Khatauni No.202/249 min, situate in village Panol, Pargana Tiun, Tehsil Ghumarwin, District Bilaspur, H.P.(hereinafter referred to as the suit land) is ancestral joint Hindu family property of the plaintiffs and defendant No.2. Plaintiffs specifically claimed in the suit that suit land was inherited by defendant No.2 from his fore-father and as such, he could not sell the same without there being any legal necessity. Plaintiffs claimed that defendant No.2 illegally sold the suit land in favour of defendant No.1 by way of registered Sale Deed dated 29.12.1990 for consideration of Rs. 13,000/- without any legal necessity and as such, Sale Deed registered on 29.12.1990 in favour of defendant No.1 qua the suit land be declared as null and void being totally illegal and they be handed over possession of the suit land.
3. Aforesaid suit having been filed by the plaintiffs came to be resisted by defendant No.1, who purchased the suit land from defendant No.2. Besides taking preliminary objections with regard to maintainability and valuation, defendant No.1 claimed that neither plaintiff and defendant No.2 constitute a joint Hindu Family nor the suit land is ancestral Joint Hindu family property. Defendant No.1 claimed before the court below that suit land is self acquired property of defendant No.2 and he had already sold some plots out of the aforesaid land to some other persons and at no point of time challenge, if any, ever came to be laid by the plaintiff qua those sale deeds. Defendant also claimed that sale of suit land by defendant No.2 in his favour was for legal necessity because defendant No.2 after sale of suit land constructed house and three shops in the same Khasra number.
4. Learned trial Court on the basis of the pleadings adduced on record by the respective parties framed following issues:-
2. Whether registered sale deed dated 29.12.1990 executed by defendant No.2 in favour of defendant No.1 is illegal, null and void as alleged? OPP.
3. Whether the plaintiffs are entitled for the relief of possession as prayed for? OPP.
4. Whether the suit is not maintainable? OPD.
5. Whether proper court fee has not been affixed? OPD.
6. Whether the plaintiffs are estopped to file the present suit by their act and conduct? OPD.
7. Whether the alleged sale deed was made for legal necessity as alleged?OPD-1.
8. Whether the suit land was personal property of defendant No.2 as alleged?OPD-1.
9. Relief.
5. Learned trial Court on the basis of the pleadings as well as evidence adduced on record by the respective parties, dismissed the suit of the plaintiffs vide judgment dated 17.8.1999. Being aggrieved and dissatisfied with aforesaid judgment and decree pa
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