1. Challenge to partition proceedings and mutation on grounds of fraud – Concurrent findings of fact – Second appeal dismissed. (Para 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 )
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2026 Supreme(Online)(HP) 3540
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
HON'BLE MR. JUSTICE ROMESH VERMA
Jatinder Paul – Appellant
Versus
Kaushalaya Devi AND ORS – Respondent
RSA/294/2024
Important Points
Fraud must be specifically pleaded with full particulars; mere allegations insufficient. Concurrent findings of fact cannot be disturbed in second appeal unless perverse. (49 words)
Subject
Civil Law - Pleadings and Practice
Act Referred
Headnote
(A) Code of Civil Procedure, 1908 - Order VI Rules 2 and 4 - Pleadings - Material facts - Particulars of fraud - Every pleading must contain a concise statement of material facts, not evidence. When fraud is alleged, specific particulars with dates and items must be stated. General allegations of fraud are insufficient. (Paras 24-26)
(B) Code of Civil Procedure, 1908 - Section 100 - Second Appeal - Scope - High Court cannot interfere with concurrent findings of fact unless the findings are based on inadmissible evidence, ignore relevant admissible evidence, are based on misreading of evidence, or are perverse. A substantial question of law must be debatable and not previously settled. (Paras 47, 51-53)
(C) Code of Civil Procedure, 1908 - Order 41 Rule 27 - Additional evidence in appeal - Party must show that despite due diligence, the evidence was not within its knowledge and could not be produced at the trial. (Paras 46-49)
Facts of the case:
The appellant/plaintiff filed a suit for declaration that revenue entries and mutation No. 826 dated 22.11.2010 based on a partition order were null and void, alleging that the partition proceedings were conducted fraudulently behind his back without notice. The defendants/respondents contended that the plaintiff’s predecessor-in-interest was served and proceeded ex parte, and that the plaintiff himself had filed an appeal against the partition order before the SDO (Civil), which was dismissed in default in 2009. The trial court dismissed the suit, and the first appellate court affirmed. The plaintiff then filed a regular second appeal.
Findings of Court:
The High Court held that the plaintiff failed to plead fraud with the requisite particulars as required under Order VI Rule 4 CPC. The plaintiff’s own admission that he had filed an appeal against the partition order demonstrated knowledge of the proceedings, negating the fraud allegation. The documentary evidence proved that the plaintiff’s predecessor was duly served and that the plaintiff participated by filing an appeal. The concurrent findings of fact by the lower courts were neither perverse nor based on misreading of evidence. The application for additional evidence under Order 41 Rule 27 was rightly rejected as the documents were within the plaintiff’s knowledge. The second appeal lacked merit.
Issues: 1. Whether the courts below misread and misappreciated the pleadings and evidence, vitiating their findings? 2. Whether the plaintiff adequately pleaded and proved fraud to set aside the partition and mutation? 3. Whether the second appeal could be entertained on the substantial question of law framed?
Ratio Decidendi: Fraud must be distinctly pleaded with full particulars and proved by cogent evidence; mere general allegations do not suffice. A litigant who has taken part in proceedings or appealed against an order cannot later claim that those proceedings were conducted behind his back. The High Court, in a second appeal, cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The dismissal of an earlier appeal in default renders the partition order final.
Result: Appeal dismissed with no order as to costs.
(B) Code of Civil Procedure, 1908 - Section 100 - Second Appeal - Scope - High Court cannot interfere with concurrent findings of fact unless the findings are based on inadmissible evidence, ignore relevant admissible evidence, are based on misreading of evidence, or are perverse. A substantial question of law must be debatable and not previously settled. (Paras 47, 51-53)
(C) Code of Civil Procedure, 1908 - Order 41 Rule 27 - Additional evidence in appeal - Party must show that despite due diligence, the evidence was not within its knowledge and could not be produced at the trial. (Paras 46-49)
Facts of the case:
The appellant/plaintiff filed a suit for declaration that revenue entries and mutation No. 826 dated 22.11.2010 based on a partition order were null and void, alleging that the partition proceedings were conducted fraudulently behind his back without notice. The defendants/respondents contended that the plaintiff’s predecessor-in-interest was served and proceeded ex parte, and that the plaintiff himself had filed an appeal against the partition order before the SDO (Civil), which was dismissed in default in 2009. The trial court dismissed the suit, and the first appellate court affirmed. The plaintiff then filed a regular second appeal.
Findings of Court:
The High Court held that the plaintiff failed to plead fraud with the requisite particulars as required under Order VI Rule 4 CPC. The plaintiff’s own admission that he had filed an appeal against the partition order demonstrated knowledge of the proceedings, negating the fraud allegation. The documentary evidence proved that the plaintiff’s predecessor was duly served and that the plaintiff participated by filing an appeal. The concurrent findings of fact by the lower courts were neither perverse nor based on misreading of evidence. The application for additional evidence under Order 41 Rule 27 was rightly rejected as the documents were within the plaintiff’s knowledge. The second appeal lacked merit.
Issues: 1. Whether the courts below misread and misappreciated the pleadings and evidence, vitiating their findings? 2. Whether the plaintiff adequately pleaded and proved fraud to set aside the partition and mutation? 3. Whether the second appeal could be entertained on the substantial question of law framed?
Ratio Decidendi: Fraud must be distinctly pleaded with full particulars and proved by cogent evidence; mere general allegations do not suffice. A litigant who has taken part in proceedings or appealed against an order cannot later claim that those proceedings were conducted behind his back. The High Court, in a second appeal, cannot interfere with concurrent findings of fact unless they are perverse or based on no evidence. The dismissal of an earlier appeal in default renders the partition order final.
Result: Appeal dismissed with no order as to costs.
Legal Category Hierarchy
- civil law
- practice and procedure
Petitioner Advocates:Rachna Kuthiala Garima Kuthiala ,Respondent Advocate: NEMO Anirudh Sharma Abhinav Ghabroo Priyam Sharma
Table of Contents
2. Appellant alleged fraud and lack of notice in partition; respondents contended plaintiff had knowledge and filed appeal. (Para 15 , 16 )
3. Appeal dismissed – Concurrent findings affirmed – No interference under Section 100 CPC. (Para 54 )
4. What are the requirements for pleading fraud under the CPC?
Fraud must be pleaded with specific particulars; general allegations are insufficient. Order VI Rule 2 and 4 require material facts and particulars. (Para 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 )
5. When can a second appellate court interfere with concurrent findings of fact?
Only when findings are based on inadmissible evidence, ignore relevant evidence, misread evidence, or are perverse. The first appellate court is the final court of fact. (Para 50 , 51 , 52 , 53 )
6. What is the test for allowing additional evidence under Order 41 Rule 27?
The party must show that despite due diligence, the evidence could not be produced earlier. Failure to do so leads to rejection. (Para 46 , 47 , 48 , 49 )
7. Does filing an appeal against a partition order negate a claim of fraud based on lack of knowledge?
Yes, filing an appeal demonstrates knowledge of the proceedings and belies allegations of fraud and lack of notice. (Para 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 )
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
RSA No. 294/2024
Reserved on: 25.05.2026
Decided on: 15.06.2026
Jatinder Paul …..Appellant
Versus
Kaushalaya Devi & ors. ….Respondents
______________________________________________________________
Coram:
The Hon’ble Mr. Justuice Romesh Verma, Judge.
Whether approved foro reporting?1Whether reporters of the local papers may be allowed to see the judgment? Yes. Yes For the Appellant: Mr. Sanjeev Kuthiala, Senior Advocate with Ms. Tamana Sharma, Advocate.
For the Respondents: Mr. Viplav Sharma, Senior Advocate with Mr. Dalip Kumar, Advocate, for respondents No. 1 and 2.
Romesh Verma, Judge
The present appeal arises out of the judgment and decree, dated 03.09.2024, as passed by the learned Additional District Judge, Palampur, District Kangra, H.P., whereby the appeal filed by the present appellant/plaintiff has been dismissed and the judgment and decree, dated 31.07.2013, as passed by the learned Civil Judge (Junior Division), Baijnath, District Kangra, H.P., dismissing the suit of the appellant/plaintiff, has been affirmed.
2 Brief facts of the case are that the appellant/plaintiff, Jatinder Paul, filed a suit for d.eclaration and permanent prohibitory injunction against the respondents/defendants No. 1 to 3, namely, Kaushalya Devi, Chander Kanta and Gujru Ram, in tohe Court of Civil Judge (Jr. Div.), Baijnath, District Kangra, H.P. on 11.08.2011. It was averred in the plaint that the land bearing Khata No. 168, Khatauni Nos. 282 to 285, Khasra Nos. 864, 866, 867, 869, 857, 858, 859,o 868, 1175/820, 832, 882, 883, Kita 12, measuring 1-39-73 hectares, situated at Mohal Kotli, Mauza Bir, Tehsil Baijnath, District Kangra, H.P. is jointly owned and pohssessed by the plaintiff with defendants No. 1 to 3 and proforma defendants No. 4 to 12. The predecessor-in-interest of defendants No. 1 and 2 had purchased the land in Khata No. 4, specifically in Khasra Nos. 882, 832, 883 on 24.01.1974 after proper demarcation and since then, they were in possession. The plaintiff with other co-sharers is also recorded as one of the co-sharers in the specific Khasra Nos. 857, 858, 859 and 868 in the suit land as per the revenue record.
3 It was further averred that defendants No. 1 and 2 initiated the alleged partition proceedings with respect to the suit land, however they kept the plaintiff away from contesting the partition proceedings with respect to the suit land before the concerned revenue authority fraudulently, misrepresenting and without any notice to the plaintiff or his pred.ecessor-in- interest, as a result of which, defendants No. 1 to 3 succeeded in getting the land mutated in their favour behind the back of the plaintiff in connivance with theo concerned revenue officials which is in possession of the p laintiff. Though, other co- sharers and proforma defendants No. 4 to 12 are having no dispute with the plaintiff, however they have been impleaded as party being o necessary for the purpose of the suit. The defendants No. 1 and 2 fraudulently and on misrepresentation filed partition proceedings of Khata Nos. 2 and 3 of jamabandi fohr the year 1991-92 and thereafter, the said Khata numbers were incorporated as Khata Nos. 139 and 140 in the jamabandi for the year 2001-02, whereas defendant Nos. 1 and 2 did not apply for partition of the land, in which one Saran was recorded as tenant i.e. Khata No. 3 of the jamabandi for the year 1991-92, which corresponds to Khata No. 140 of jamabandi for the year 2001-02.
4 As per the plaintiff, defendants No. 1 and 2 had filed partial partition proceedings as per revenue record of 2001-02 instead of 1991-92. The alleged partition and mutation to this effect is only a paper entry and the plaintiff is not bound by the alleged partition, which is prima facie, illegal, wrong and is result of fraud, which has been committed on the plaintiff. Therefore, prayer was made to decree. the suit, thereby, declaring the revenue entries, depicting the defendants No.
