IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA 135 of 1998. Judgment Reserved on 14.11.2008. Date of decision 18.11.2008. Ranvir Singh …Appellant. Versus Jagdish Singh and others …Respondents. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the appellant Mr. B.K.Malhotra, Advocate. For the respondents 2 & 3 Mr. V.K.Gupta, Advocate. Dev Darshan Sud, J. This is the plaintiff’s second appeal against the judgment and decree of two Courts below dismissing the suit of the plaintiff for possession by way of ejectment of the respondents-defendants from the suit property. On the pleadings of the parties, the learned trial Court framed as many as 17 issues (numbered 1 to 16A). The crucial issue for determination was as to whether the suit 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - property was owned by the plaintiff and defendants 1 to 3 in equal shares being Joint Hindu Family Property. On a conspectus of the entire evidence, the learned trial court dismissed the suit holding that the plaintiff has not been able to establish his exclusive title over the disputed house standing on the land claimed by him. In appeal, the learned District Judge considered the submission made by the appellant herein as to whether the suit land was gifted to the plaintiff by the mother of the parties to the suit on which the appellant claimed he had constructed a building which he claimed as his own. Reassessing and appreciating the entire evidence, the learned Court concluded that the plaintiff – appellant had not produced the gift deed though registered which according to him was the title to the land and proof of the fact that he had constructed a house thereon. This appeal was admitted on 15.3.2000 on the following substantial question of law: “Whether in the case of gift of land, the same shall include the transfer by way of gift of building existing on such land? - 3 - I have heard the learned counsel for the parties and gone through the record. Learned counsel for the appellant submits that the execution of the gift deed having been admitted by the defendants, he was entitled to the structures standing thereon as land includes buildings etc. standing thereon. He places reliance on decision in George v. South Indian Bank Ltd., AIR 1959 Kerala 294 holding: “ A house being embedded in the earth is immoveable property and when land is transferred, buildings erected upon it pass by necessary implication to the transferee. We are therefore unable to accept the argument that the plaintiff is not entitled to a charge on the building in items 2 and 3 of Schedule C. However, a direction can be given for sale of this building after the sale of all except the interest of the 2nd defendant in item 1 of Schedule A, which we have directed should be sold last. Subject to this direction, the appeal must fail.” - 4 - He fortifies his argument with decision of the Andhra Pradesh High Court in M/S Boda Narayana Murthy and Sons v. Valluri Venkata Suguna and others, AIR 1978 AP 257, laying down the same principle. Learned counsel submits that the proof of the gift deed was not required as that was admitted by the defendants and such admission dispensed with proof. It was for the defendants to have established as to under what circumstances the gift was invalid as pleaded. He relies upon the decision in Valluri Jaganmohini Seetharama Lakshmi and another v. Kopparthi Ramachandra Rao and others, AIR 1994 AP 284. The arguments though attractive, cannot be accepted. The learned District Judge dismissed the appeal holding that there is no evidence to show that any gift was made by the mother of the plaintiff and the defendants to the plaintiff with respect to the suit land/ property. Assessing the evidence on record, he holds that when the plaintiff appeared as PW-1, he simply stated that he had purchased the suit land for Rs.1000/- in September, 1968 and thereafter he got a gift executed from his mother with respect to this land. - 5 - Thereafter, he applied for loan from his employer which was sanctioned and granted to him and he constructed a house whose plan is placed on record as Mark ‘A’. At the time when such construction was made, his father was alive and the house was in possession of his father. The original gift deed was not produced on record but only a photo copy Mark ‘B’ was placed on the record. He then states that he started constructing the house in 1977. Two more witnesses, namely Tadu Ram PW-2 and PW-3 Chhangu Ram were produced to prove that they had worked on the construction of the house in the year 1978. When considered with the other evidence, namely that of Shiv Singh DW-2 who was serving with the Municipal Committee, Sundernagar, it was held and rightly so that the permission to construct the building was granted on 23.4.1969 and the house was completed in February, 1970. Ex.DG is the certificate from the Secretary, Municipal Committee, Sundernagar testifying to this fact. Ex.DC is a copy of the khasra girdawari for the year 1970-71 showing the house in existence over the suit land. On this evidence, the Court holds that the claim of the plaintiff that he constructed - 6 - the building was not substantiated by the evidence on record as it was his own case that the construction was started in the year 1977. While considering the evidence of PW-2 and PW-3, the Court holds that they admit that the father of the plaintiff was supervising the construction. In the totality of this evidence, even if it be assumed that the gift deed did not need proof, the case put up by the plaintiff regarding transfer of the immovable property, that is the constructed building along with gift cannot be accepted, as according to the plaintiff such construction was started only in the year 1977 whereas the entire construction was complete in 1970 as evidenced by Ex.DG. The question of law raised for consideration of this Court is thus answered against the appellant as the construction of the building has not been proved on record. On the question of the gift deed, all that need be said is that even if proof was to be dispensed with, surely a certified copy of the gift deed should have been placed on record of this case. The case put up by the plaintiff that the land was purchased in the name of his mother and thereafter a gift was made - 7 - by her to him, does not stand proved from the record. The plaintiff has not placed on record the certified copy of the sale deed as according to the plaintiff, he had purchased the land for a sum of Rs.1000/-. The reasons for such non production are best known to the appellant. This appeal is accordingly dismissed. There shall be no order as to costs. November 18, 2008.(PC.) (Dev Darshan Sud), J.