IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.505 of 1998 Decided on: 11.5.2010 Dhani Ram …Appellant Versus Bhim Dutt and others …Respondents Coram The Hon’ble Mr. Justice Surjit Singh, Judge Whether approved for reporting?1 For the Appellant : Mr. P.C. Sharma and Mr. Sanjay Gandhi, Advocates. For the Respondents: Mr. Bimal Gupta, Advocate for respondent No.1. Surjit Singh, Judge (oral) This Regular Second Appeal is directed against the judgment and decree dated 31.7.1998 of learned Additional District Judge, Shimla, whereby accepting the appeal and setting aside the judgment and decree of the trial Court, dated 7.4.1993, vide which suit of respondent-plaintiff had been dismissed, the said learned Additional District Judge has decreed the suit and passed a decree declaring respondent- plaintiff Bhim Dutt as exclusive owner in possession to the extent of the share of late Shri Hari Singh in the suit land and also declared the entries in the revenue record, showing defendant No.1 Dhani Ram as a co-sharer, illegal, void and not binding upon the plaintiff and further restrained appellant- defendant No.1 Dhani Ram from interfering in the suit land. Whether reporters of the local papers may be allowed to see the judgment? …2… 2. Relevant facts may be summed up thus. Respondent No.1 Bhim Dutt filed a suit for declaration that he was exclusive owner in possession of the suit land, which was earlier owned by late Shri Hari Singh, as the said land devolved upon him on the basis of a will dated 4.5.1977, executed by said Hari Singh in his favour, in lieu of the services rendered by him. It was pleaded that defendant Dhani Ram, appellant herein, had got executed a gift deed in his favour on 7.11.1962, in respect of the half share of the suit property, from late Hari Singh by playing fraud upon and making misrepresentation to him (Hari Singh) and on the strength of that gift deed, entries also appeared in the revenue papers. It was further pleaded that Hari Singh came to know about the fraud and misrepresentation played upon him in March, 1989, but he could not take any legal action, because he was sick at that time and then passed away in May, 1989. Plea of adverse possession was also raised in the alternative by the plaintiff-respondent. 3. Suit was contested by the appellant. He denied that Hari Singh executed any will in favour of the plaintiff and that the plaintiff was in exclusive possession of the property. Suit was alleged to be not maintainable. It was also alleged to be barred by time. Plea of estoppel was also raised. Plaintiff’s locus-standi to sue was challenged and valuation of the suit for the purposes of court fee and jurisdiction was also questioned. It was pleaded that Hari Singh had executed a gift deed on 7.11.1962 in favour of appellant-defendant and …3… on the basis of that gift deed he was owner to the extent of half share of Hari Singh’s property. 4. Trial Court dismissed the suit, holding that there was no evidence that gift made by Hari Singh, in favour of appellant-defendant, was result of fraud. Suit was also held to be barred by time. Late Hari Singh was held to have gifted half of the suit property in favour of appellant-defendant. 5. Appeal was filed by plaintiff Bhim Dutt against the judgment and decree of the trial Court in the Court of District Judge, which came to be decided by the Additional District Judge, who accepted the appeal and set aside the decree of dismissal of suit, passed by the trial Court. Learned first Appellate Court held that gift deed had not been produced and, therefore, it could not be said that any gift deed had been executed by Hari Singh. It was further held that at the most it could be said to be a case of oral gift, but since possession had not been delivered to the donee, i.e. the appellant-defendant, gift was not complete and valid. Consequently, appeal was accepted and suit was decreed, as aforesaid. 6. This appeal was admitted on the following substantial questions of law: “1. Whether by raising plea of adverse possession, plaintiff has admitted the ownership of appellant over suit land? 2. Whether additional District Judge below has misread and misconstrued pleadings of …4… parties and he failed to determine point of controversy in accordance with law? 3. Whether plaintiff having assailed validity of gift deed as registered in the office of Sub Registrar, Kasumpati on 7.11.1962, was required to show as to how that deed was illegal and void and how title had not passed on, in favour of appellant/defendant? 4. Whether in view of the divergent claim of the respondent/plaintiff in earlier civil suit No.39/1 of 1984 dismissed on 21.10.1987, the present suit was not maintainable as in the earlier suit, plaintiff raised plea of oral gift in 1970 and in the present suit, he raised plea of Will on behalf of Shri Hari Singh? 5. Whether the plaintiff had no locus-standi to assail gift deed in favour of appellant because during life time of Donor Hari Singh did not assail the same? 6. Whether the presumption of truth as attached to the entries in revenue record according to which defendant/appellant is owner in possession of suit land has not been rebutted? 7. Whether the material admission made by respondent/plaintiff as regards to the claim of Appellant has been ignored? 8. Whether without seeking cancellation of gift deed in favour of the appellant, the suit was not maintainable? …5… 9. Whether the claim of the respondent/plaintiff was barred by the limitations and the suit had not been properly valued for purposes of court fee and jurisdiction? 10. Whether in view of previous suit No.39/1 of 1984 the present suit was not maintainable?” 7. I have heard the learned counsel for the parties and gone through the record. 8. Plea of adverse possession was raised by the plaintiff, in the alternative, in case it was found that Hari Singh had executed a valid gift in favour of the appellant- defendant. Therefore, by taking this plea plaintiff cannot be said to have admitted the ownership of appellant-defendant. Substantial question of law No.1 is answered accordingly. 9. As regards substantial question of law No.2, a bare reading of the judgment of the first appellate Court shows that it has not appreciated the pleadings of the parties correctly. It was nobody’s case that gift deed had not been executed by late Hari Singh in favour of appellant-defendant or that it was an oral gift. Plaintiff stated in the plaint that a gift had been made on 7.11.1962, but that was the result of fraud and misrepresentation played by the appellant- defendant upon Hari Singh. Defendant denied in the written statement that he played any fraud or misrepresentation and alleged that gift deed had been executed in his favour on 7.11.1962 and it had been got registered on the same day. Replication was filed by the respondent-plaintiff, who admitted …6… that gift deed was there, but reiterated that it was the result of fraud and misrepresentation. 10. In the face of the aforesaid pleadings of the parties as also the categorical statement by plaintiff Bhim Dutt, who appeared as PW-3, that he enquired from Hari Singh, at the time of execution of the Will in the year 1977, as to what would happen to the property gifted in favour of appellant- defendant Dhani Ram, view taken by the learned first Appellate Court is contrary to the pleadings and evidence on record and thus the finding of the first Appellate Court that at the most it was a case of oral gift, unaccompanied by possession, cannot be upheld. Substantial question of law is answered accordingly. 11. Coming to substantial question of law No.3, issue raised in the suit was not that gift was not there, but it was whether the gift deed was the result of any fraud or misrepresentation, practised upon the donor, namely deceased Hari Singh and, therefore, what was required to be proved was the plea of plaintiff-respondent Bhim Dutt that the gift was the result of fraud or misrepresentation. No evidence with respect to this plea was adduced by the plaintiff- respondent. Not only this, he did not even plead particulars of alleged fraud or misrepresentation. Two Courts below have not believed this plea of the plaintiff-respondent. This plea having not been proved nor even having been properly pleaded, first Appellate Court was not justified in holding that there was no valid gift and declaring the plaintiff as absolute …7… and exclusive owner of the entire land, owned and possessed by deceased Hari Singh, on the basis of Will set up by him. 12. Learned counsel for the respondent, relying upon affidavit Ext. PW5/A sworn by Hari Singh on 31.3.1984, argued that gift was result of fraud and misrepresentation, as declared in the said affidavit. Submission has been noticed only to be rejected. Firstly, declaration made in the affidavit is nothing, but a self-serving statement made by deceased Hari Singh. Secondly, in this affidavit particulars of alleged fraud or misrepresentation are not there. Affidavit simply says that gift had been obtained by playing fraud or making misrepresentation etc. There is no reference to the particulars of alleged fraud or misrepresentation. Substantial question of law is answered accordingly. 13. As regards substantial question of law No.4, trial Court gave the finding that Will was executed by Hari Singh in favour of the plaintiff. Defendant did not challenge this finding, by filing cross-appeal or even cross-objections. Otherwise also, appellant-defendant, being not the legal heir of Hari Singh, had no locus-standi to question the Will, especially when the legal heirs of deceased Hari Singh, who were impleaded as defendants not only did not challenge the Will, but supported plaintiff’s plea that Hari Singh had made Will in his favour. Question is answered accordingly. 14. So far as substantial question of law No.5 is concerned, in view of the averments made in the plaint that Hari Singh came to know about the alleged fraud or …8… misrepresentation only two months before his death and because of that he could not challenge the gift and the fact that plaintiff has stepped into the shoes of Hari Singh, on the basis of Will, it cannot be said that he does not have locus- standi to file the suit. Question is answered accordingly. 15. Substantial question of law No.6 does not arise out of the pleadings of the parties, because their case is based on challenge to the gift deed, executed in November, 1962 and the entries made on the basis of said gift deed in favour of the defendant. Existence of gift deed having been admitted by the plaintiff in the plaint as also in the replication, there is no need to refer to the entries in the revenue record, to ascertain whether gift had been made by Hari Singh in favour of defendant. Question is answered accordingly. 16. Coming to substantial question of law No.7, plaintiff very categorically admitted, while appearing as PW-3, that Hari Singh had executed a gift deed in favour of defendant. In view of this admission, learned first Appellate Court was not justified in holding that at the most this was a case of oral gift and possession having not been delivered, gift was incomplete and, hence, no title could be derived by the appellant-defendant on the basis of alleged gift. Question is answered accordingly. 17. Substantial question of law No.8 was not pressed. 18. As regards substantial question of law No.9, plaintiff, while in the witness box as PW-3, stated that at the time of execution of Will in his favour, in the year 1977, he …9… asked testator Hari Singh as to what would happen to the property, which he had already gifted in favour of appellant- defendant. That means, plaintiff was aware of the existence of gift deed in favour of appellant-defendant, in the year 1977. This statement indicates that Hari Singh was also aware of the existence of gift deed, but he did not challenge the same, during his life time. Plaintiff simply stepped into his shoes. When deceased Hari Singh was aware of the existence of gift deed, at least in the year 1977, per aforesaid admission by the plaintiff-respondent, while appearing as PW-3, suit cannot be said to have been filed within time, because period of limitation is three years for cancellation of a registered document. 19. Subject matter of the suit is land assessed to revenue. Valuation of the suit has been done by reference to the land revenue, as per requirement of Himachal Pradesh Court Fee Act. So, the suit cannot be said to be undervalued. Substantial question of law No.9 is answered accordingly. 20. Coming to substantial question of law No.10, previous suit No.39/1 of 1984 had been withdrawn with liberty to file a fresh suit based on the same cause of action. So, the plea that the present suit was not maintainable, on account of withdrawal of the earlier suit No.39/1 of 1984, cannot be accepted. Question is answered accordingly. 21. As a result of above discussion and answers to substantial questions of law, appeal is accepted. Judgment and decree of the first appellate Court, decreeing the suit of …10… the plaintiff, are set-aside and those of the trial Court, dismissing his suit are restored. Appeal stands disposed of accordingly. May 11, 2010 (ss) (Surjit Singh), J