IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 334 of 1999 Date of Decision : August 10, 2010 Smt. Surya Devi Appellant Versus Sh. Minu and others Respondents Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. K. S. Kanwar, Advocate, for the appellant. For the respondents : Mr. Arjun Lall, Advocate, for respondents No. 1 and 2. Sanjay Karol, J. (Oral) In this Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 plaintiff has assailed the concurrent findings of fact recorded by the Courts below. 2. As per the plaintiff the suit property was occupied by her grand father Sh. Penu who expired in the year 1955 leaving behind his wife Smt. Dugli, his sons Sh. Thakaru and Sh. Minu and daughters Smt. Chaunki and Smt. Manohari as legal heirs. Sh. Thakaru expired in the year 1976 leaving behind his daughter, the present plaintiff as the sole surviving legal heir. The property in question was jointly occupied by all the legal heirs of Sh. Penu and Whether reports of Local Papers may be allowed to see the judgment? 2 Sh. Thakru. However in the year 1976 i.e. immediately after the death of Sh. Thakaru, Smt. Chaunki Devi got the plaintiff admitted at the Anaath Ashram at Mashobra (Shimla). 3. According to the plaintiff, Sh. Minu by perpetuating fraud and to the exclusion of the other legal heirs of Sh. Penu, obtained a decree from a Civil Court to the effect that he alone is in possession of the suit property and had perfected his title by way of adverse possession. There is no dispute that the judgment and decree dated 2.7.1986 passed by the Civil Judge, in Civil Suit No. 5 of 1984, titled as Minu versus State and another stands affirmed in an appeal by the learned District Judge, Mandi, Kullu and Lahaul-Spiti Districts, in terms of judgment and decree dated 15.12.1989. There is also no dispute that the same was upheld by this Court in RSA No. 286 of 1990 on 18.12.1990. In terms of the said decree Sh. Minu alone has been held to be owner of the suit property. 4. On 15.10.1993 the present plaintiff filed the instant suit for declaration and injunction praying for the following relief:- “15. It is, therefore, prayed that it may be declared that the plaintiff, defendant No. 1 and proforma defendants No. 3 to 5, being the legal heirs of the deceased Sh. Penu, who was owner in possession of the suit land and the aforesaid two and half storeyed house standing thereon, have inherited his estate and they are joint owners in possession of the suit land as described in para No. 1 of the plaint in equal shares and that the defendant No. 1 while filing the civil suit No. 5 of 1984, before the learned Senior Sub Judge, Kullu, and decided 3 on 2.7.1986, had suppressed the true and material facts and thus obtained the decree from the learned District Judge, Mandi, Kullu and Lauhal and Spiti Districts, Camp at Kullu, passed in Appeal No. 184 of 1986/ 269 of 1988, decided on 15.12.1989, and also in RSA No. 286/90, dated 18.12.1990, from the Hon’ble High Court by concealing the material facts and playing fraud upon the Civil court as well as upon the Appellate Courts, by claiming himself as sole and exclusive legal heir of the deceased Penu, and also got the mutation No. 2845, of Phati Nasogi attested and sanctioned, and as such the plaintiff is not bound by the aforesaid decree and mutation and that the plaintiff, defendant No. 1 and proforma defendants No. 3 to 5, being the legal heirs of the deceased have inherited the suit land in equal shares and they are joint owners in possession of the suit land, and that the mutation is liable to be sanctioned in the names of the parties in equal shares with consequential relief of injunction, restraining the defendant No. 1, from alienating, mortgaging, transferring the suit land in any manner and from creating any charge thereon and from ousting and dispossessing the plaintiff from the suit land. Alternatively in case if the Hon’ble Court comes to the conclusions that the plaintiff has been dispossessed, joint possession may be ordered to be delivered to the plaintiff and a decree to that effect together with costs of the suit may be passed in favour of the plaintiff, proforma-defendants and against the defendant No.1. Any other relief to which the plaintiff may be found entitled to in the circumstances of the case under consideration, the same may also be awarded in favour of the plaintiff and against the defendant No. 1 in the 4 interest of justice. It is further prayed that the sale deed dated 30-7-92, bearing No. 1369, executed by the defendant No. 1 in favour of the defendant No. 2 showing therein to have sold the land measuring 0-4 biswas out of the suit land in favour of the defendant No. 2, being without any valid title, and being paper transaction be also declared as null and void and similarly the mutation No. 2860, attested on the basis of the void sale deed and the subsequent mutations no. 2861, of alleged family partition dated 21.9.92, attested in favour of the defendants No. 1 and 2 be also declared as null and void having no binding effect upon the plaintiff and proforma-defendants and consequently both the defendants No. 1 and 2 be restrained from interfering in the joint ownership and possession of the plaintiff and proforma defendants and from dispossessing and ousting them in any manner whatsoever nature and they may also be burdened with the costs of this suit.” 5. The plaintiff’s suit was inter alia resisted by Sh. Minu on the ground that he being in exclusive possession of the suit property he was rightly held to be owner thereof. Importantly Smt. Chaunki Devi and legal representatives of Smt. Manohari Devi did not file any written statement. 6. Based on the pleadings of the parties, the trial Court framed the following issues:- “(1) Whether the judgment/decree dated 15.12.1989 which is subsequently affirmed by the Hon’ble High Court vide judgment/decree dated 18.12.90 5 is obtained fraudulently by suppressing the material facts by the defendant, as alleged? OPP (2) Whether the plaintiff is entitled for the relief of declaration? OPP (3) Whether the plaintiff has no cause of action against defendant-1 as alleged? OPD (4) Whether the suit is not maintainable in the present form? OPD (5) Whether the suit of the plaintiff is not within limitation? OPD (6) Whether the plaintiff is estopped from filing the present suit? OPD (7) Relief.” 7. On the basis of the material on record the trial Court came to the conclusion that after 1987 plaintiff had not lived in the house and occupied the suit property. She was not in possession of any portion of the suit land including the built up structure. She had lived in an Ashram and thereafter contracted a private marriage. The trial Court also held that in the year 1983 the Notified Area Committee had issued a notice with regard to the unauthorized encroachment on the suit property which was contested by only Sh. Minu. 8. These findings of fact stand affirmed by the lower appellate Court. 9. As on the day when Sh. Thakaru died no right of title by way of adverse possession had fructified in his favour. Admittedly Sh. Penu and Sh. Thakaru expired in the year 1955 and 1976 6 respectively. Smt. Manohari is stated to have expired in the year 1972. It was only when in the year 1983 the Committee objected to the unauthorized possession on the suit property that Sh. Minu filed the suit. 10. In the absence of any rights having fructified in favour of Sh. Penu or Sh. Thakaru it would not be correct in law to urge that by way of succession/inheritance 1/5th share in the suit property had devolved upon the present plaintiff. 11. Further the Courts below have concurrently held that it was Sh. Minu alone who was in possession of the suit property. Such finding could not be shown to be erroneous. 12. In this background it cannot be said that Sh. Minu had obtained a decree from the civil Court in his favour by suppressing material facts and playing fraud. In any event there is no material evidence on record to substantiate the plea of suppression and fraud. 13. Thus, no substantial question of law arises for consideration in the present appeal. The present appeal without any merit is dismissed. (Sanjay Karol), Judge. August 10, 2010 (PK)