IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 472 of 2001 Judgment reserved on: 24.02.2010 Date of decision: 10.03.2010 _________________________________________________________________ Chajju Ram and another .....Appellants Versus Ved Parkash and another .....Respondents ________________________________________________________________ Coram The Hon’ble Mr. Justice V.K. Sharma, J. Whether approved for reporting?1 Yes _________________________________________________________________ For the appellants: Shri Ankush Dass Sood, Advocate. For the respondents: Shri R.K. Gautam, Senior Advocate with Shri Sandeep Pandey, Advocate. _________________________________________________________________ V.K. Sharma, J. The present regular second appeal arises out of concurrent findings of fact returned by both the courts below viz. Sub Judge First Class, Court No. 1, Paonta Sahib, District Sirmaur, H.P. and District Judge, Sirmaur at Nahan, H.P. By these judgments whereas the suit for grant of a decree of permanent prohibitory injunction filed by the respondents as plaintiffs against the appellants being the defendants was decreed by the learned trial court vide judgment and decree dated 11.04.2001 which has been affirmed by the learned First Appellate court vide judgment and decree dated 20.08.2001, the counter claim for specific performance of contract setup by the defendants was dismissed and the findings to this effect have been affirmed by the learned District Judge. 2. Brief facts of the case as pleaded by the parties can be 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. :-2-: stated as follows. 3. According to the plaintiffs they are absolute owners in possession of the suit land comprised in khata No. 9, khasra No. 44/3, measuring 3 bigha 12 biswa situate at village Bangran, Tehsil Poanta Sahib, District Sirmaur, H.P. as per jamabandi for the year 1993-94. It was allotted to them in partition proceedings by orders of the Assistant Collector I Grade (in short AC I Grade), Poanta Sahib. Mutation No. 476 was attested on 09.10.1997. Possession of the suit land was delivered to them on 4.5.1998 pursuant to a warrant of possession issued by the Revenue Department. Delivery of possession was entered vide daily diary report (DDR in short) No. 499 of even date. The factum of partition stood incorporated in jamabandi for the year 1993-94 and that of delivery of possession in khasra gardawari for the year 1998. After delivery of possession, the plaintiffs cultivated the suit land and had sown maize crop therein. When it was ready for harvesting, the defendants by use of sheer force cut and removed the maize crop from the suit land in the last week of October, 1998. The matter was reported to the police at Police Station Poanta Sahib but without any result. Later on while the plaintiffs were sowing wheat crop in the suit land on 28.11.1998, the defendants came there armed with deadly weapons and tried to prevent the plaintiffs from cultivating the suit land and sowing the wheat crop. The plaintiffs who are weak and poor were not in a position to resist the attack led by the defendants and hence they were constrained to file the suit. 4. The suit was contested by the defendants on preliminary objections regarding non-joinder of necessary parties, locus standi, cause of action, limitation and valuation. On merits the share of the plaintiffs in the suit land and thus their ownership therein were admitted. Allotment of the suit land in favour of the plaintiffs during partition, attestation of mutation in respect thereof and incorporation :-3-: of an entry to this effect in jamabandi for the year 1993-94 were also categorically admitted. However, though issuance of warrant of possession was admitted, yet it was alleged that possession was delivered to the plaintiffs only in revenue papers and in fact there was no actual delivery of possession on the spot and instead the defendants are retaining possession of the suit land from the time of execution of agreement of sale dated 1.5.1975 executed by Shri Devi Singh, father of plaintiff No. 1 in favour of Shri Budh Ram, father of the defendants. By this agreement Shri Devi Singh had agreed to sell the suit land measuring 3 bigha 10 biswa to Shri Budh Ram for a sale consideration of Rs. 10,000/-. Since then possession of the suit land is continuously with the defendants through their father, Shri Budh Ram. The agreement dated 1.5.1975 was a mortgage deed wherein it was agreed that in case the mortgage money is not repaid it would be deemed to be an agreement for sale. According to the defendants they are entitled for retaining possession of the suit land and were also setting up a counter claim for specific performance of agreement dated 1.5.1975. 5. The counter claim for specific performance forms part of the written statement filed by the defendants. It is averred therein vide para one that apart from the defendants, there are other legal heirs of late Shri Budh Ram who are entitled to succeed to his properties. The first part of the agreement dated 1.5.1975 has been performed by Shri Budh Ram. However, Shri Devi Singh could not perform his part of the contract during his life-time. Now, since both of them have died, the agreement is binding upon their respective legal heirs. It was further pleaded that earlier the defendants had filed a suit against the plaintiffs through Shri R.S. Chaudhary, Advocate, Nahan. Later on, Shri I.S. Chauhan, Advocate was engaged as counsel. Thereafter the suit was withdrawn “on the technical ground/formal defects to file the fresh suit”. However, the defendants could not file the suit afresh and in the :-4-: meantime, the plaintiffs filed the present suit for prohibitory injunction,that is why the present counter claim was filed. It was lastly averred that the suit was withdrawn with permission to file afresh on the same cause of action. 6. The plaintiffs filed written statement to the counter claim and raised various legal objections regarding limitation, estoppel, maintainability and the alleged agreement dated 1.5.1975 being false and fraudulent document and, thus, not enforceable. On merits execution of agreement dated 1.5.1975 by Shri Devi Singh was emphatically denied. It was also denied that possession of the land mentioned therein was delivered by him to Shri Budh Ram. Payment of consideration of Rs. 10,000/- under the agreement was also denied. Apart from it, the averments setup in the plaint were once again reiterated by way of written statement to the counter claim. 7. On the above pleadings, the parties went to trial on the following issues: 1. Whether the plaintiffs are entitled to the relief of injunction as alleged? OPP 2. Whether the suit is bad for mis-joinder of necessary parties? OPD 3. Whether defendants are in possession over the suit land. If so, its effect? OPD 4. Whether defendants are entitled to the relief of specific performance of sale as per agreement dated 1.5.1975? OPD 5. Whether plaintiffs are estopped by their act and conduct? OPD 6. Whether Shri Devi Singh never executed any agreement of sale dated 1.5.1975. If so, its effect? OPD 7. Relief. 8. After the parties led evidence and were heard by the learned court of first instance, the suit was decreed and the counter claim was dismissed. Whereas issues No. 1 and 6 were held in :-5-: affirmative, the remaining issues were decided in negative. 9. The defendants carried the matter in appeal before the learned District Judge, but could not succeed. It being so, now they are before this court by way of the present regular second appeal. 10. The appeal was admitted on the following substantial questions of law: 1. Whether the possession of the plaintiffs stood proved in law when neither the Kanungo nor Patwari were examined to prove the alleged warrant of possession dated 4.5.1998 and valuable right of the defendant / appellant to cross examine the revenue authorities has been deprived? 2. Whether both courts below have failed to appreciate in law and fact that the ingredients of Section 53A of the Transfer of Property Act were available on record and, therefore, the suit of the plaintiffs could not be decreed? 3. Whether the counts below have wrongly interpreted and appreciated the contents of Ex. DW-4/A thereby prejudicing the case of the appellant? 11. I have heard Mr. Ankush Dass Sood, Advocate, learned counsel for the appellants (defendants), Mr. R.K. Gautam, Senior Advocate with Shri Mehar Chand, Advocate, learned counsel for the respondents (defendants) and have gone through the records. 12. The suit of the plaintiffs was decreed by the learned trial court firstly on the premises that they being owners in possession of the suit land pursuant to partition were entitled for a decree of permanent prohibitory injunction against the defendants, who were causing undue and unwarranted interference with the same. Secondly, execution of agreement dated 1.5.1975 by Shri Devi Singh in favour of Shri Budh Ram was held not to be proved. The First Appellate Court has also concurred with these findings. 13. The controversy between the parties revolves mainly around two documents, the first being agreement dated 1.5.1975 and the other copy of DDR No. 499, dated 4.5.1998. Whereas according to :-6-: the plaintiffs possession of the suit land was delivered to them during partition vide DDR No. 499, dated 4.5.1998, the defendants asserted that the suit land was mortgaged/agreed to be sold to their father Shri Budh Ram by Shri Devi Singh, father of the plaintiffs, for a sum of Rs. 10,000/- vide agreement dated 1.5.1975. 14. I shall first advert to agreement dated 1.5.1975. The document is in Hindi and when translated in English it is to the following effect: Agreement dated 1-5-1975 I Devi Singh son of Kanahiya belong to village Kansipur, Tehsil Poanta, District Sirmaur, Himachal Pradesh. I have to marry my daughter. However, I have no money. My other children etc. are minor. I have no source of income. So I mortgage my entire share to the extent of approx. 3 bigha 10 biswa in the joint land situate in village Bangran, Tehsil Poanta in which we viz. Budh Ram son of Telu, Kishan Dass and Mangat Ram sons of Beli Ram and Devi Singh son of Kanahiya (he himself) are having equal share, in favour of Budh Ram son of Telu, resident of Bangran for a sum of Rs. 10,000/- on the condition that in case I do not repay the aforesaid mortgage money within 10 years then in that event I would sell this land to Budh Ram. The land is already in possession of Budh Ram. Therefore, these few words have been scribed by way of agreement so as to come handy in case of need. Read over and accepted to be correct. Executant Thumb impression Devi Singh Devi Singh son of Kaniya resident of Kanshipur Witness(1) Signed in Hindi Pohlo Pohlo son of Chandu resident of Bangran Witness No. 3 Signed in Hindi Narata :-7-: Narata son of Pirdipa resident of Sainwala Witness(2) Thumb impression Kartara Kartara resident of Jawalapur. 15. A combined and harmonious reading of agreement dated 1.5.1975 Ex. DW-4/A would go to show that though the same is essentially a mortgage deed, yet at the same time it tantamounts to creation of clog on equity of redemption. The normal period for redemption of a mortgage is 30 years. However, this document restricts such period to mere 10 years on expiry of of which the inherent right of redemption in favour of the mortgagor, Shri Devi Singh is stipulated to have extinguished and resultantly he would have been duty bound to execute sale deed in respect of the land forming subject matter of the agreement in favour of Shri Budh Ram. I have no doubt in my mind that this stipulation would be without any legal effect being contrary to law. However, this aspect of the matter falls only within the domain of academic discussion as the learned counsel for the defendants has fairly conceded at the bar that even otherwise agreement dated 1.5.1975 Ex. DW-4/A was set up by way of the aforesaid counter claim at a highly belated stage and was, thus, hopelessly barred by time. 16. Though the agreement dated 1.5.1975 Ex. DW-4/A has been excluded from consideration by both the courts below for the reason that the testimony of the scribe thereof, DW-4 Shri Sita Ram does not go to establish execution of the same beyond doubt, yet a combined and harmonious reading of the testimony of DW-4 Shri Sita Ram coupled with that of DW-2 Shri Kartar who is a marginal witness to agreement dated 1.5.1975 Ex. DW-4/A, would go to show that he has categorically stated that the agreement dated 1.5.1975 Ex. DW-4/A was scribed by him. In such circumstances, a part of his deposition that when the document was written Devi Singh was not present, would not :-8-: be of any consequence in view of statement of DW-2, Shri Kartar, one of the marginal witness to the agreement who has proved due execution thereof and particularly in view of the provision contained in Section 68 of the Evidence Act. Sarjoo and others vs. Jagatpal Singh, A.I.R. (29) 1942, Oudh 201 and Jaldu Anant Raghuram Arya and others vs. Rajah Bommadevara Naga Chayadevamma and others, A.I.R. 1958 Andhra Pradesh, relied upon. 17. Against the above backdrop, Mr. Ankush Dass Sood, the learned counsel for the defendants, vehemently argued that since possession of the suit land was delivered by Shri Devi Singh, father of the plaintiffs, in favour of Shri Budh Ram, father of the defendants vide agreement dated 1.5.1975 Ex. DW-4/A, the doctrine of part performance embodied in Section 53A of the Transfer of Property Act would come into play and in such situation, the plaintiffs were precluded from filing the suit for grant of a decree of perpetual prohibitory injunction against the defendants. However, to my mind, this line of argument appears to have been adopted simply to wriggle out of the situation in which the defendants find themselves pursuant to partition of the joint land of which the suit land forms part and allocation of the suit land to the plaintiffs coupled with delivery of possession thereof in their favour as per DDR No. 499, dated 4.5.1998 Ex. P8. The reasons to arrive at this conclusion are setout hereinafter. 18. It has already been observed that agreement dated 1.5.1975 Ex. DW-4/A contains a quite categorical recital that the land forming subject matter thereof measuring approximately 3 bigha 10 biswa being only a share in the joint khata was already in possession of Shri Budh Ram, father of the defendants. It being so, there was no actual delivery of possession under agreement dated 1.5.1975 Ex. DW-4/A by Shri Devi Singh in favour of Shri Budh Ram. At best, it can only be taken to be constructive delivery of possession. :-9-: 19. Now, while adverting to the other aspect of the matter, that is relating to the partition proceedings pursuant to which the suit land is said to have been allotted in favour of the plaintiffs and delivery of possession, if any, under the same, it would be seen that both these aspects stand convincingly established from the evidence on record. Whereas the documentary evidence relating to partition proceedings comprises of application for partition Ex. P-3, the connected documents Ex. P-4 to P-6 and instrument of partition Ex. P-7, the delivery of possession is evidenced by application for issuance of warrant of possession Ex. P-1, warrant of possession Ex. PA, DDR No. 499, dated 4.5.1998 Ex. P8, tatima Ex. P-9 and mutation Ex. P-10. The factum of delivery of possession of the suit land to the plaintiffs pursuant to partition is further recorded in copies of khasra gardawari for kharif 1997 to kharif 1998 Ex. P-2 and P-12 and copy of jamabandi for the year 1993-94 Ex. P-11. 20. The documentary evidence adduced by the defendants in the form of copies of jamabandi for the year 1988-89 Ex. D-1, 1983-84 Ex. D-2, 1978-79 Ex. D-3, 1973-74 Ex. D-4, 1992-93 Ex. D-5 and 1993-94 Ex. D-6 relates to a period prior in point of time to the finalization of the partition proceedings and is, thus, not relevant. 21. The partition proceedings pursuant to which possession of the suit land is said to have been delivered to the plaintiffs would be deemed to have attained finality as no evidence worth the name to the contrary has been brought on record on behalf of the defendants. Furthermore, agreement dated 1.5.1975 Ex. DW-4/A was also not setup by the defendants during the partition proceedings in which they alongwith other legal heirs of Shri Budh Ram were joined as respondents No. 1 to 5 as is apparent from application for partition Ex. P-3. 22. DDR No. 499, dated 4.5.1998 vide which possession of the :-10-: suit land was delivered to the plaintiffs pursuant to partition is a certified copy of an official document within the meaning of Section 76 of the Indian Evidence Act and is, thus, per se admissible in evidence under Section 77 of the said Act. It being so, it was not incumbent upon the plaintiffs to have examined the Patwari and Kanungo to prove the same and thereby enabling the defendants to subject them to cross examination. 23. As the learned counsel for the defendants, Mr. Ankush Dass Sood has led main emphasis on the doctrine of part performance embodied under Section 53A of the Transfer of Property Act, it would be appropriate to notice the provision of law, which is to the following effect: “53A. Part Performance.- Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.” 24. It has already been held that execution of agreement dated 1.5.1975 Ex. DW-4/A was not followed by possession of the land forming subject matter thereof as the same was already with Shri Budh Ram being a co-sharer and at best, it was only constructive delivery of :-11-: possession. However, the fact remains that even such possession of the plaintiffs through their father Shri Budh Ram had come to an end pursuant to the partition proceedings and was delivered to the plaintiffs vide DDR No. 499 on 4.5.1998. Thus, at the time of filing of the suit, out of which the present appeal has arisen, by the plaintiffs in the learned trial court on 10.12.1998 it were the plaintiffs who were in possession of the suit land and not the defendants. In such situation, Section 53A of the Transfer of Property Act cannot be held to have any application in the facts and circumstances of the present case. 25. Even otherwise the plea regarding part performance of contract raises a mixed question of law and fact and cannot be permitted to be urged for the first time at the stage of second appeal as in the present case, as has been held by the Hon'ble Supreme Court in Ram Kumar Agarwal and another vs. Thawar Das (dead) through LRs, A.I.R. 1999, Supreme Court, 3248, vide para 8 of the judgment which is extracted below: “8. Plead under Section 53-A of the Transfer of Property Act raises a mixed question of law and fact and therefore cannot be permitted to be urged for the first time at the stage of second appeal. That apart, performance or willingness to perform his part of the contract is one of the essential ingredients of the plea of part performance. Thawar Das having failed in proving such willingness protection to his possession could not have been claimed by reference to Section 53-A of the Transfer of Property Act.” 26. As already noticed both the learned courts below have held agreement dated 1.5.1975 Ex. DW-4/A not be proved and in the alternative barred by time. However, insofar as the agreement relates to the counter claim for specific performance thereof, the first part of the findings to this effect has already been reversed by this court hereinabove and it has been held that agreement dated 1.5.1975 :-12-: Ex. DW-4/A stood proved in the statement of DW-2 Shri Kartar in accordance with Section 68 of the Evidence Act. Consequently, agreement dated 1.5.1975 Ex. DW-4/A has been taken into consideration and construed on its face value. However, since agreement Ex. DW-4/A was executed on 1.5.1975 and it was stipulated therein that in case the executant, Devi Singh did not redeem the land mortgaged thereunder by paying the mortgaged money of Rs. 10,000/- within 10 years, the land mortgaged would be liable to be sold to him within the same consideration, the suit for specific performance, if any, ought to have been filed within three years after expiry of the said period of 10 years reckoned from 1.5.1975, i.e. on or before 30.04.1988. But as per copy of order dated 5.11.1998 Ex. D-7, the suit was filed only on 1.7.1995 and the same was also withdrawn with permission to file afresh on 5.11.1998 and the fact remains that no such fresh suit was ever filed by the defendants. It being so, the period of limitation that had once started running on and w.e.f. 1.5.1985 stood already extinguished on 30.4.1988. It being so, the earlier suit filed on 1.7.1995 and withdrawn on 5.11.1998 with permission to file afresh was itself hopelessly barred by time. On the same reasoning, the counter claim setup by the defendants in the written statement filed in the present suit on 27.8.1999 was on the face of it still further hopelessly time barred. 27. For the reasons stated hereinabove, the appeal fails and is, accordingly, dismissed with costs throughout. (V.K. Sharma) Judge 10th March, 2010 (virender)