IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 545 of 2000. Date of decision: 24.5.2010. Sito ….. Appellant. Vs. Sahib Singh & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Ajay Sharma, Advocate. For the Respondents : Nemo. Kuldip Singh, Judge (Oral). The plaintiff has come in appeal against the judgement, decree dated 17.12.1999 passed by learned District Judge, Kangra at Dharamshala in Civil Appeal No. 97-N/ XIII/97 affirming judgement, decree dated 3.10.1997 passed by learned Sub Judge Ist Class (I), Nurpur in Civil Suit No. 47/89. 2. The brief facts of the case are that appellant had filed a suit for declaration and consequential relief of permanent prohibitory injunction regarding land comprised in khata No. 47 min, khatoni No. 177 min, khasra No. 315 measuring 0-80-09 HM situate in Mohal Purkher, Mouza Hadoli, Tehsil Nurpur, District Kangra. The further case of the appellant is that he and Kesari Devi deceased as co-sharers are recorded in cultivating possession of the suit land vide misal hakiyat 1982-83. The names of Hakmi and respondents No. 4 Whether the reporters of the local papers may be allowed to see the Judgment? …2… to 6 are also appearing in the revenue record as co-owners with appellant, but they are not in possession of the suit land, however, there is no dispute with them. The respondent No. 1 has no concern or connection with the suit land. In the month of November 1988, respondent No. 1 started proclaiming that he has purchased the suit land from the appellant. The appellant thereafter obtained copy of sale deed and he came to know that respondent No. 1 in connivance with registering authorities and witnesses got the sale deed of 1/64th share of the suit land executed in his favour without the knowledge of appellant by misrepresentation and playing fraud and also without any consideration. In fact, respondent No.1, who is a clever person in November 1988 had asked the appellant that relief to the effected persons whose houses have been damages due to heavy rains was being distributed at Nurpur and he should accompany him. On this, appellant accompanied respondent No. 1 to Nurpur where respondent No.1 got thumb impressions of appellant on procured written paper saying that respondent No. 1 was moving an application on behalf of appellant for applying to loan/ relief. 3. The appellant has never sold any share of the suit land to respondent No.1 nor he has received any sale consideration from him. The respondent never appeared before Sub-Registrar, Nurpur. The respondent No.1 on the basis of alleged sale deed in the last week of November 1988 tried to create a path over the suit land, in these circumstances, the suit was filed. 4. The suit was contested by respondent No.1 by filing written statement and he took preliminary objections of …3… maintainability, estoppel, locus-standi, cause of action, concealment of material facts and non-joinder of necessary parties. On merits, the respondent No. 1 has pleaded that he is also a co-sharer in the suit land with appellant and proforma respondents to the extent of 1/64th share i.e. 5 marlas which he had purchased for the purpose of path. The appellant is not in exclusive possession of the suit land after the sale deed dated 19.11.1988. The appellant filed replication in which he reiterated his stand and denied the case put forward by respondent No.1. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff and proforma defendant No. 2 are owners in exclusive possession of the suit land? OPP. 2. Whether the sale deed dated 19.11.1988 executed by the plaintiff in favour of the defendant No. 1 is the result of fraud, undue influence and mis- representation and is thus null & void? OPP. 3. Whether the suit is not maintainable? OPD. 4. Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD 5. Whether the plaintiff has no locus standi to file the present suit? OPD. 6. Whether the plaintiff has got no cause of action to file the present suit? OPD. 7. Whether the plaintiff has concealed material fact, if so, its effect? OPD. 8. Whether the suit is bad for non-joinder of necessary parties? OPD. 9. Relief. …4… 5. The issues No. 1 to 8 were answered in negative and suit was dismissed by the learned Sub Judge on 3.10.1997. The appellant filed an appeal. The learned lower appellate court found that no findings were recorded by the trial court with regard to the relief of injunction, accordingly issue No. 8-A was framed by the lower appellate court, which is as follows:- 8-A Whether the plaintiff is entitled to the decree of permanent injunction against defendant No.1 as prayed for under relief `B’, if so, to what extent? OPP. On 7.9.1999 the learned appellate court kept the appeal pending before him, but remitted the matter to learned trial court for hearing the parties and giving findings on issue No. 8-A. The parties were allowed to file objections and cross-objections on the findings returned by the trial court on issue No. 8-A. The trial court gave its findings on issue No. 8-A and observed that appellant is entitled to the relief of injunction in regard to construction only but also ordered that no construction shall be raised by respondent No.1 over the suit land. 6. The learned lower appellate court on 17.12.1999 dismissed the appeal . In these circumstances, the appellant has come in second appeal, which has been admitted on the following substantial question of law:- Whether oral and documentary evidence with specific reference to the statements of PW-1, PW-2 and document Ex. PX has been misread and mis-appreciated by the Courts below thereby vitiating the impugned judgements and decrees? …5… 7. I have heard Mr. Ajay Sharma, learned counsel for the appellant and have also gone through the record. None appeared on behalf of the respondents. It has been submitted by learned counsel for the appellant that sale deed Ex. PX has not been proved and therefore, mere exhibiting the sale deed as Ex. PX will not dispense with the proof of document. He has also submitted that once the sale deed Ex. PX is not proved then there is nothing on record to show that respondent No. 1 has any right, title and interest in the suit land. He has submitted that on issue No. 8-A, the learned trial court on 1.11.1999 has recorded separate findings and on the basis of findings recorded on 1.11.1999, the appellant is entitled to injunction as prayed in the suit. 8. The appellant in the suit has prayed declaration that the sale deed dated 19.11.1988 is wrong, null and void and is the result of fraud, undue influence, mis-representation, without consideration, ineffective and not binding upon the rights of appellant and deceased Kesari Devi in any manner whatsoever and the sale deed dated 19.11.1988 be declared null and void with consequential relief of permanent prohibitory injunction. The onus to prove issue No. 2 whether the sale deed dated 19.11.1988 executed by the appellant in favour of respondent No. 1 is the result of fraud, undue influence and mis-representation and is thus null and void was also on the appellant. This issue has been answered in negative by the trial court and the findings recorded by the learned trial court on this issue have been affirmed by the learned District Judge. …6… 9. The learned counsel for the appellant has contended that it was for respondent No. 1 to prove the sale deed Ex. PX. According to learned counsel for the appellant, the sale deed Ex. PX has not been proved. The sale deed has been just tendered in evidence and in absence of proof of sale deed Ex. PX, it cannot be read in evidence. It has not been denied by the learned counsel for the appellant that when the sale deed Ex. PX was tendered in evidence, no objection was taken for admitting the sale deed Ex. PX in evidence. The existence of sale deed and it has been obtained by fraud, mis-representation etc. are entirely two different situations. The appellant has not denied the existence of sale deed inasmuch as he has even prayed for declaring sale deed as null and void. 10. The case of the appellant is that the sale deed has been obtained by playing fraud and mis-representation. No objection was taken at the time of tendering of sale deed in evidence, therefore, now the appellant cannot take the objection that sale deed Ex. PX cannot be read in evidence. The burden of proving that sale deed was the result of fraud and mis-representation was on the appellant, which he has miserably failed to prove. The two courts below after appreciation of evidence have recorded a finding of fact against the appellant regarding the sale deed. In second appeal, evidence cannot be re-appreciated. Therefore, there is nothing wrong in the findings recorded by the two courts below regarding the validity of sale deed Ex. PX. 11. The learned counsel for the appellant has submitted that the trial court had returned the findings on 1.11.1999 on issue No. …7… 8-A, as directed by the learned lower appellate court. On the basis of findings recorded by the learned lower appellate court on issue No. 8-A, the appellant is entitled to injunction, as prayed. The learned trial court in its findings recorded on issue No.8-A has recorded a specific finding that appellant is not entitled to the relief of permanent injunction restraining respondent No. 1 from interfering in his exclusive possession as he failed to establish his exclusive possession over the suit land. The learned trial court has, however, held that since the suit land is joint land and in joint possession of co- owners, none of them has right to raise any construction or to change the nature of the joint land till it is legally partitioned between the co- owners in accordance with the provisions of law. The learned trial court has ultimately decided issue No. 8-A in favour of appellant and held that respondents alongwith plaintiff are restrained from raising any construction over the suit land till it is legally partitioned in accordance with law. 12. The learned lower appellate court has affirmed the findings of learned trial court on issue No. 8-A, but in the final order the learned District Judge has upheld the judgement, decree dated 3.10.1997 of the trial court and did not give any relief to the appellant on the basis of findings recorded on issue No. 8-A. A co-sharer has no right to raise construction on the joint land till the land is partitioned. The respondent No. 1 in the presence of sale deed Ex. PX is at the most a co-sharer in the suit land, but he has no right to raise construction on any part of the suit land. The learned District Judge while denying the relief to appellant on the basis of findings on …8… issue No. 8-A has erred in law, therefore, the impugned judgement, decree of learned District Judge only to this limited extent is not sustainable. The aforesaid substantial question of law to a limited extent is answered in favour of the appellant. 13. No other point has been urged. 14. The result of above discussion, the appeal is partly allowed. The impugned judgement and decree are modified. The respondent No. 1 is restrained from raising construction on any part of the suit land till it is partitioned, the remaining part of impugned judgement and decree are upheld, with no order as to cost. May 24, 2010. ( Kuldip Singh ), (Hem) Judge.