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2019 Supreme(HP) 2002
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
SURESHWAR THAKUR, J.
Nand Lal - Appellant
Versus
Sh. Girja Nand - Respondent
RSA No. 343 of 2006
Decided On : 29-03-2019
For the Appellant :Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma.
For the Respondent:Mr. Bhupender Gupta, Senior Advocate with Mr. Janesh Gupta.
The admissibility of oral evidence in contradiction to the terms of a document, as per Indian Evidence Act, Sections 91 and 92.
Headnote:
possession - property dispute - Indian Evidence Act, Sections 91 and 92 - The court discussed the execution of a registered deed of conveyance, possession of the suit property, and the admissibility of oral evidence in contradiction to the terms of a document. The court found that the conclusions arrived by the lower courts were not based on a proper and mature appreciation of evidence on record, and hence allowed the appeal, setting aside the judgments and decrees impugned before the court.
Fact of the Case:
The plaintiff claimed physical possession of the suit land and filed a suit for permanent prohibitory injunction against the defendant, who contested the suit by claiming ownership and possession of the land.
Finding of the Court:
The lower courts decreed the suit of the plaintiff, but the higher court found that the conclusions arrived by the lower courts were not based on a proper and mature appreciation of evidence on record.
Issues: The entitlement of the plaintiff to the relief of permanent prohibitory injunction, the effect of an alleged agreement to sell the suit land, the maintainability of the suit, and whether the plaintiff is estopped by his act or conduct from filing the present suit.
Ratio Decidendi: The court found that the conclusions arrived by the lower courts were not based on a proper and mature appreciation of evidence on record, and hence allowed the appeal, setting aside the judgments and decrees impugned before the court.
Final Decision: The instant appeal is allowed, and judgments and decrees impugned before this Court are set aside. Consequently, the plaintiff's suit is dismissed. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs. Records be sent back forthwith.
JUDGMENT :
Sureshwar Thakur, J.
The instant appeal is directed, against, the concurrently recorded verdicts by both the learned Courts below, whereby, the plaintiff's suit for rendition, of, a decree for permanent prohibitory injunction qua the suit khasra number(s), was, hence decreed.
2. Briefly stated the facts of the case are that the plaintiff is in actual physical possession of the suit land where he has planted apple orchard. Old Khasra number of the suit land prior to settlement was 78 and recorded in physical possession of father of the plaintiff and his uncle. The defendant has no right, title and interest in the suit land. Due to enmity on account of civil suit filed by the plaintiff against the defendant qua a house, he is threatening to dispossess the plaintiff from the suit land without any right, title or interest.
3. The defendant contested the suit and filed written statement, wherein he has pleaded that the father of the defendant Chandu Lal, vide sale deed of 8.3.1967, purchased land borne in Khasra Nos. 62, 68, 71, 73, 77 and 158, measuring 12-11 bhighas, along with double storeyed house for Rs.6000/- from Hira and Parma Nand, predecessor-in-interest, of the plaintiff. Parma Nand and Hira at that time also entered into an agreement of sale of Khasra No.78 with Chandu Lal for consideration of Rs.600/-, which was paid. Chandu Lal was put in possession of Khasra No.78, i.e. the suit land under the agreement dated 28.4.1975. They had agreed to covey title to Chandu Lal by executing a sale deed after obtaining necessary permission. After death of Chandu Lal defendant is in possession of the suit land since 1976. So, possession of the plaintiff qua the suit land is denied. He claimed having planted apple orchard Revenue entries to the contrary are wrong. Plaintiff and his predecessor had been acknowledging defendant to be owner of the suit land. In the alternative defendant pleaded qua theirs having acquired title to the suit land by way of adverse possession.
4. The plaintiff filed replication to the written statement of the defendant, wherein, he denied the contents of the written statement and re-affirmed and reasserted the averments, made in the plaint.
5. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:-
1. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction, as prayed for? OPP
2. Whether Shri Parma Nand and Hiru, the predecessor-in-interest of the plaintiff had entered into an agreement to sell the sit land in favour of the father of the defendant, vide agreement dated 28.4.1975 as alleged, if so its effect? OPD.
3. Whether the suit in the present form is not maintainable? OPD.
4. Whether the plaintiff is estopped by his act or conduct from filing the present suit, as alleged? OPD.
5. Relief.
6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff/respondent herein. In an appeal, preferred therefrom, by, the defendant/appellant herein, before the learned First Appellate Court, the latter Court dismissed, the, appeal, and, affirmed the findings recorded by the learned trial Court.
7. Now the defendant/appellant(s) herein, has instituted the instant Regular Second Appeal, before, this Court, wherein he assails the findings, recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, on 14.8.2006, this Court, admitted the appeal instituted by the defendant/appellant(s) against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial question of law:-
1. Whether the two courts below have committed serious illegality in decreeing the claim of the plaintiff, ignoring the fact that their predecessor s had executed an agreement Ex.DA, for sale of the suit property to the predecessor of the defendant and had also delivered the possession aft
