IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 136 of 1999 Reserved on: 23.12.2008 Date of decision:24.12.2008 _____________________________________________________ Gian Singh Appellant Versus Jeet Ram Respondent Coram The Hon’ble Mr. Justice V.K.Ahuja, J. Whether approved for reporting1? No. For the appellant: Mr. N.K. Thakur, Advocate. For the respondent: Mr. Bimal Gupta, Advocate. V.K.Ahuja, J. : This is a Regular Second Appeal filed by the appellant under Section 100 C.P.C. against the judgment and decree dated 1.12.1998 passed by the learned Additional District Judge, Sirmour, vide which the judgment and decree of the Court of learned Sub Judge Ist Class, Court No. 2, Paonta Sahib, dismissing the suit of the appellant for declaration and possession, has been affirmed. Briefly stated, the facts of the case are that the appellant hereinafter also referred to as the plaintiff filed a suit for declaration and possession as against respondent hereinafter also referred to as the defendant. It was alleged by the plaintiff that the land comprised in Khasra No. 6 measuring 7-6 Bighas, Whether the reporters of Local Papers may be allowed to see the Judgment? Yes. 2 situated in village Patti Natha Singh, was owned by Gainda Singh and on his death, it was inherited by Bhan Singh. On the death of Bhan Singh, the plaintiff being his son inherited the suit land. It was alleged that the suit land was a coparcenary Joint Hindu Family property and Bhan Singh was the ’Karta’. The plaintiff alleged that since he was a coparcener and was having a share by birth and, therefore, his father Bhan Singh had no right to alienate the suit land without legal necessity. It was alleged that his father fell in bad company and for serving his pursuits in life, he entered into an agreement on 7.6.1975 to sell the suit land to the defendant, who was in fiduciary position exercising influence over Bhan Singh, who indulged in drinking, gambling and lusting. It was alleged that the said agreement was an outcome of mental incapacitation of Bhan Singh. The defendant got himself recorded in possession by moving an application to A.C. Paonta Sahib, which order was void since the alleged agreement did not create any right, title or interest in the vendee i.e. the defendant. The plaintiff accordingly, filed the suit for declaration claiming that since he was a coparcener and the agreement was without consideration and the entries in favour of the defendant showing him as in ‘Kasht’ are wrong and hence, he claimed the relief of declaration and in the alternative for possession. The defendant took up various pleas in regard to locus standi, maintainability etc. He however, pleaded that the suit land was neither ancestral nor coparcenary or Joint Hindu Family property. The defendant claimed that he was in possession on the basis of agreement dated 7.6.1975 executed by the plaintiff’s 3 father, who received sale consideration to the tune of Rs.2,900/- and had agreed to execute the sale deed after redeeming the suit land from S.B.I. It was denied that the plaintiff has inherited the suit property or Bhan Singh being ‘Karta’ had no right to alienate the same. In the alternative, it was pleaded that even if the suit land is proved to be Joint Hindu Family ancestral coparcenary property and in that case, the same was sold for legal necessity, which sale was valid. The vices of Bhan Singh as pleaded in the plaint or exertion of influence by the defendant on him were denied. It was admitted that an application for correction was filed and Bhan Singh was duly served but did not appear and accordingly, the order passed by the A.C. Paonta Sahib was legal and valid. It is also claimed that protection under Section 53-A of the Transfer of Property Act since he was in possession on the basis of the agreement in question. On the pleadings of the parties, the issues were framed by the learned trial Court, who held that that the suit land was an ancestral property but the same was not Joint Hindu Family coparcenary property and the plaintiff was not a co-sharer by birth. It was held that the defendant was in possession of the suit land in part performance of the contract and the revenue entries in favour of the defendant were correct and legal. On appeal, those findings were upheld by the learned first Appellate Court and the appeal was dismissed. I have heard the learned counsel for the parties and have gone through the record. The submissions made by the learned counsel for the appellant were mainly confined to Issues No. 3 and 4 as to 4 whether the agreement of sale was illegal and a result of undue influence and that the entries were wrong and illegal. No submissions were made in regard to the findings under Issues No. 1 and 2 that the suit land was ancestral, the plaintiff had not got a right as a coparcener by way of birth. In regard to the findings based upon the agreement and the order passed by the A.C. 2nd Grade, it was submitted that the defendant was required to file a suit for specific performance and since the title continued with the plaintiff, the entry could not have been corrected in favour of the defendant since there was nothing in the agreement to show that the possession was also given to the defendant at the time of execution of the agreement. Thus, it was submitted that the order passed by the A.C. 2nd Grade was incorrect who could not confer ownership rights upon the defendant since no title passed on to the defendant in pursuance of the agreement. Thus, it was submitted that the findings to the contrary of both the Courts below are liable to be reversed and the plaintiff was entitled to the relief of declaration and possession in the alternative. On the other hand, the learned counsel for the respondent submitted that both the Courts below have discussed the whole oral evidence and documentary evidence and these findings of fact given by the Courts below cannot be termed as perverse calling for an interference by this Court. It was submitted that the execution of the agreement in question by the father of the plaintiff in favour of the defendant was not denied by the plaintiff in the plaint or in his evidence. It was also submitted that the entry was made in favour of the defendant in regard to possession only on 5 the basis of the agreement in which there was a reference to delivery of possession as well as on the basis of the inquiry made by the Revenue Officer. It was submitted that the plaintiff never assailed the said order of the A.C. 2nd Grade by way of appeal or even in the plaint and no question of law what to talk of substantial question of law arises in this appeal, which is liable to be dismissed accordingly. On appraisal of the record of the case, it is clear that the appeal was admitted by this Court as per the order passed on 3.9.1999. However, no substantial question of law was formulated at the time of admission of the appeal, though, as per the law laid down by the Hon’ble Supreme Court, substantial questions of law have to be formulated by this Court at the time of admitting the app0eal. A perusal of the record shows that the substantial questions of law were framed by the learned counsel for the appellant alongwith the appeal and since it was not mentioned by the then Hon’ble Judge admitting the appeal as to what are the substantial questions of law, the appeal shall be deemed to have been admitted on the substantial questions of law formulated alongwith the appeal at Sr. No. 1 to 5. At this stage, it is difficult to hold that the appeal was admitted on only on some specific questions of law and as such, it is being ordered that the appeal shall be deemed to have been admitted on the basis of the substantial questions of law formulated at the time of admission, though, to my mind, the relevant question for worth consideration can be said to be questions No. 2, 4 and 5, which pertain to mis-construction of the agreement and the order passed 6 by the Assistant Collection as to whether the same was legal and valid and not. Coming to the evidence in question, it is clear that in the plaint, the plaintiff alleged that the suit land was Joint Hindu Family property as well as ancestral and coparcenary property and the learned trial Court had concluded that though it was an ancestral property having been inherited by the plaintiff from his father who had inherited it from his father, therefore, it was held to be ancestral property but not a coparcenary property, in which a child acquires right by birth. These findings were given by the learned trial Court after referring to the oral as well as documentary evidence, which findings were affirmed by the learned first Appellate Court and have not been challenged during the course of arguments and as such, those findings under Issues No. 1 & 2 are liable to be affirmed since nothing was pointed out that any document was omitted to be referred by the learned Courts below while giving findings under these issues. Coming to the other pleas raised by the learned counsel for the appellant during the course of arguments, the plaintiff did allege that this agreement was executed by his father in favour of the defendant, meaning thereby that the execution of the agreement in question was not denied by the plaintiff. He however, challenged it on the ground that the defendant exercised influence upon his father since he was in fiduciary relationship with the executant. The learned trial Court did refer to the evidence and concluded that the defendant never stood in a fiduciary relationship with the father of the plaintiff since they were from different caste and the defendant could not have 7 exercised any influence upon the executant, which findings were arrived at after referring to the evidence, which call for no interference or reappraisal by this Court since nothing was pointed out that those findings are incorrect. In regard to the other pleas taken by the plaintiff in challenging the agreement in question that it was not for legal necessity since his father was addicted to drinking and other vices but when he appeared in the witness box, the plaintiff came up with the plea that his father was a religious person and had failed to prove that he was addicted to drinking etc. and therefore, the challenge made to the agreement in question, which was not a sale deed that it was not for legal necessity. This plea was also not substantiated by the plaintiff. The only question left for consideration was as to whether the A.C. 2nd Grade was competent or not to pass the order, which was challenged in a way by the plaintiff alleging that there was no reference to delivery of the possession in the agreement and the A.C. 2nd Grade could not have conferred any title upon the defendant. To my mind, these submissions have been made since the agreement in question has not been considered or seen and the order passed by the A.C. 2nd Grade has also not been considered in full by the learned counsel for the appellant. A perusal of the agreement in question Ext. PW2/A clearly shows that there is a reference that possession has been delivered to the vendee today and as such, there was a clear reference to the delivery of the possession. In regard to the order passed by the A.C. 2nd Grade Ext. D-2, it is clear that the correction has been made only in the column of possession based upon the agreement in question and no title stood transferred or correction 8 was made in the ownership column and, therefore, these submissions were also made based upon mis-interpretation of both these documents. The entry has been corrected in possessory column after considering agreement and the inquiry held by the A.C. 2nd Grade and no title has been transferred as was sought to be argued by the learned counsel for the appellant. The A.C. 2nd Grade was competent accordingly prima facie to consider the question of possession and making correction accordingly and in case, the said order passed was wrong and illegal, it was for the plaintiff to have challenged the same before the appellate authorities in the Revenue Court, which appears to have not been done by the plaintiff and, therefore, the said order has become final, which prima facie was within the competence of the Revenue Officer to make correction in regard to possession and as such, the said order does not prima facie suffer from any illegality. Moreover, the defendant was also entitled to protect his possession based upon the agreement under Section 53-A of the Transfer of Property Act and, therefore, both the Courts below have rightly held that there is no merit in the suit filed by the plaintiff, which was rightly dismissed by both the Courts below. In regard to the reappraisal of the evidence, no case was made out for reappraisal of oral and documentary evidence led by the parties and the arguments raised were mainly confined to the legality of the order passed by the A.C. 2nd Grade, which prima facie does not suffer from any illegality. Once both the Courts below have discussed the evidence and there is nothing that they have omitted to discuss any material documents or material statements, there cannot be reappraisal of the evidence while 9 sitting in appeal and the findings of the learned trial Court affirmed by the learned first Appellate Court do not call for an interference by this Court. In view of the above discussion, I accordingly hold that there is no merit in the appeal, which is dismissed accordingly. However, the parties are left to bear their own costs. December 24, 2008 ( V.K. Ahuja ) (BSS) Judge