IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.103 of 2002. Date of Decision: 24th May, 2011. ____________________________________________________ Shri Jharu Ram ..Appellant. Versus Smt. Kesari Devi ..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the appellant : Mr. Ajay Sharma and Mr. Ban Bhushan, Advocates. For the respondent : Mr. Surinder Saklani, Advocate, vice Mr. Vinod Thakur, Advocate. ___________________________________________________ SURINDER SINGH, J,(Oral). The appellant, hereinafter referred to as ‘the plaintiff’, filed the present Regular Second Appeal against the concurrent findings of the Courts below. The appeal was admitted on the following substantial questions of law: 1. Whether both the learned Courts below erred in appreciating the provisions of law applicable, pleadings of the parties and evidence adduced by them thereby vitiating the impugned judgments and decrees? Whether reporters of the Local papers are allowed to see the judgment? - 2 - 2. Whether impugned judgments and decrees stand vitiated for not rendering any separate findings on issues No.4 and 6? 2. In short, the facts giving rise to the present appeal can be stated thus. The plaintiff sought the relief of declaration that he is owner in possession of the suit land and the gift-deed dated 18.9.1993 alleged to have been executed by him in favour of his daughter-respondent, hereinafter to be referred as ‘the defendant’, is the result of fraud and coercion, thus nonest upon his right and further that consequent entries incorporated in the revenue record in favour of the defendant qua the suit land be declared as wrong, without consent and knowledge of the plaintiff, consequently sought the relief of injunction. It is the specific case of the plaintiff that he never gifted the suit land in favour of the defendant nor there was any occasion to do so. The suit land is the only source of bread winning for him, therefore, there was no occasion to gift the same in favour of the defendant. It is also the case of the plaintiff that the defendant- daughter, after marriage is settled in the house of her in-laws. It is alleged that she got his thumb-marks on some papers on the pretext of free maintenance - 3 - allowance from the Government. When this fact of misuse of the said papers came to his knowledge, he filed the suit. 3. The suit was resisted and contested by the defendant by filing written statement. She raised preliminary objections of estoppel, acquiescence and non-disclosure of material particulars with respect to the fraud viz-a-viz valuation, limitation and jurisdiction. On merits, the defendant pleaded that no coercion or fraud was played upon the plaintiff for the execution of the gift-deed, but, the gift-deed was executed out of natural love and affection being his daughter and it was got registered in the office of Sub-Registrar and the possession was also transferred in favour of the defendant. 4. In replication to the written statement, the plaintiff denied the preliminary objections and affirmed even paras on merits. 6. On the pleadings of the parties, the learned trial Court framed the following issues: 1. Whether the plaintiff is owner in possession of the suit land, as alleged? OPP. 2. Whether gift deed dated 18.9.1993 by plaintiff in favour of defendant is outcome of force, coercion and fraud, as alleged? OPP. - 4 - 3. Whether mutation No.168 dated 6.2.1994, mutation No.84 dated 6.2.1994 and mutation No.266 dated 6.2.1994 are wrong and without knowledge and consent of plaintiff and are liable to be deleted and corrected, as alleged? OPP. 4. Whether a due and valid gift deed is executed by the plaintiff in favour of the defendant as alleged? OPP. 5. Whether the plaintiff is estopped by his act, conduct and acquiescence to file the present suit? OPD. 6. Whether the plea of coercion, fraud, connivance cannot be looked into? OPD. 7. Whether the suit is not within time? OPD. 8. Whether the suit is not maintainable in the present form? OPD. 9. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD. 10. Relief. 7. The learned trial Court after hearing the parties and going through the evidence on record decided issue No.9 against the defendant, whereas other issues in favour of the defendant and against the plaintiff except issues No.5 and 7, which were not pressed. Consequently, the suit was dismissed. 8. Feeling aggrieved and dissatisfied with the impugned judgment and decree passed by the learned trial Court, the plaintiff filed appeal before the learned District Judge. The learned first appellate Court reappraised the evidence adduced on record - 5 - and considered the contentions raised before him by the plaintiff, but did not find favour, as such the appeal was dismissed. 9. Shri Ajay Sharma duly assisted by Shri Ban Bhushan, learned Counsel for the plaintiff, vehemently argued that the learned Courts below lost sight of the provisions of law while appreciating the evidence on record and further that no separate findings were given on issues No.4 and 6, thus the impugned judgments and decrees deserve to be set aside and the appeal be accepted. 10. On the other hand, learned Counsel appearing for the defendant supported the impugned judgments and decrees of the Courts below. 11. I have given my thoughtful consideration to the rival contentions of the parties and have examined the record in view of the points raised. 12. Admittedly, the defendant is one of the six daughters of the plaintiff. All are married and the plaintiff as PW1 stated that he was never looked-after by the defendant and there was no occasion for him to execute the gift-deed in favour of the defendant. - 6 - He also denied having been present before the Sub- Registrar for the registration of the gift-deed and further that he was not informed of sanctioning of the mutation in favour of the defendant. He admitted that Prem Chand is the Nambardar of the Halqua. He stated that he only puts thumb impression, but could not sign. When confronted with the thumb impression on the power of attorney executed by him, he even denied that to be his own. PW2 Suti Devi is his wife. She also made a similar statement. PW3 Bishan Dass stated that the land is in possession of the plaintiff. PW4 is the sister of the defendant. She made another version stating that the defendant took plaintiff with her by playing fraud and got some papers thumb- marked. She also stated that the defendant had been giving beatings to her parents for the last about 6-7 years, but stated that she did not lodge any report against her with the police. According to her, the suit land has now become fallow, but denied that the defendant had been in possession thereof and asserted that all the sisters are having equal rights in the suit land. - 7 - 13. As against this, defendant examined DW1 Angat Ram, the document-writer. He stated having scribed the gift-deed Ext.DW1/A at the instance of the plaintiff in favour of the defendant in the presence of witnesses Shri Parbhat Singh and Shri S.K. Shastri, Advocate. He also testified that the contents thereof were read over to the plaintiff, which were admitted by him to be correct, thereafter he put his thumb- impression. He also proved the endorsement Ext.DW1/B, which was also thumb-marked by the plaintiff and he further testified that this deed was executed of his own free will and this entry of deed also found mentioned in deed-register maintained by him. Surprisingly, in cross-examination the above averments have not been assailed at all. There is only one line cross-examination with respect to the date of execution of the deed which was also rightly stated by him. 14. DW4 Parbhat Singh is a marginal witness. He also supported the version given by deed-writer aforesaid. Nothing material could be extracted in his cross-examination. DW2 Gorkhu Ram stated about the possession of the defendant and also the fact - 8 - that the defendant and her son had been rendering services to the plaintiff and even the plaintiff had admitted having gifted the land to the defendant. According to him, the plaintiff never stated that he was coerced or any fraud was played. Rather, the plaintiff had told him that except the defendant no other daughter was looking after him and his wife. Even DW3 Kesari Devi defendant supported her version as averred in the written statement and testified that the possession of the suit land was delivered to her on the execution of the gift-deed. 15. On the critical examination of the aforesaid evidence, the Courts below rightly held that the gift-deed is proved to have been executed by the plaintiff of his own free will and the possession was also delivered to the defendant. There is nothing on record to show that the said deed was the outcome of force, coercion and fraud. Even no particulars of coercion or fraud have been proved by leading cogent evidence. The learned trial Court has decided issue No.6 with respect to the plea of coercion, fraud and connivance alongwith issues No.1 and 4 to avoid repetition on the discussion of same evidence. Thus, - 9 - no separate findings on above issues were required as these issues were interlinked and interconnected, the result whereof depended upon the appreciation of the evidence led by the parties. Therefore, in my considered opinion, the Courts below did not fell in error in appreciating the provisions of law applicable to the facts and circumstances of the case and the evidence adduced by the parties was properly appreciated. As such, the substantial questions of law are accordingly answered. The appeal is without any merit, hence dismissed. Parties bear their own costs. May 24, 2011. (Surinder Singh), (rc) Judge