IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 145 of 2001 Reserved on: 21.09.2011 Decided on: 10.10.2011 Chaman Lal …Appellant. Versus Gaitri Devi & another …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the appellant: Ms. Pratima Malhotra, Advocate. For the respondents: Mr. Shrawan Dogra, Advocate. Deepak Gupta, J. This Regular Second Appeal by the plaintiff was admitted on the following substantial question of law: “1. Whether the Courts below have misread and misappreciated the evidence on record to hold that the defendants No. 1 and 2 had not entered into agreement dated 1.1.1987 and 2.5.1990 to sell their share of land in favour of the plaintiff ?” 2. Briefly stated, the facts of the case are that the plaintiff, Chaman Lal, was married to Gaitri Devi. According to him, Gaitri Devi had sold land measuring 0-6-5 bighas vide registered sale deed to him and mutation No. 3039 to this effect was attested in his favour. Later on, Gaitri Devi sold the remaining land out of her 1/4th share in the total land, which came to 1-17 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. -: 2 :- bighas to the plaintiff for a sum of ` 22,000/- alongwith her share in the abadi deh land and 1½ storeyed house. The plaintiff allegedly paid ` 21,700/- to Gaitri Devi and ` 300/- remained to be paid to her later. The plaintiff was put in joint possession of the land by Gaitri Devi on the basis of the agreement dated 01.01.1987. 3. Defendant No. 2, Salochna Devi, is the real sister of Gaitri Devi. She also had 1/4th share in the total land and according to the plaintiff, she sold her entire share, which works out to 2-3-5 bighas, to the plaintiff vide agreement dated 02.05.1990 for a consideration of ` 25,000/- alongwith her share in the house and abadi deh land. She was allegedly paid ` 24,700/- by the plaintiff and he was put in joint possession thereof. It is alleged that in the year 1992, Gaitri Devi filed a civil suit for recovery of the balance amount of sale consideration of ` 300/-, which the plaintiff paid to her and, thereafter her suit was dismissed as withdrawn on 11.03.1992. The defendant No. 2, Salochna Devi, also filed a similar suit for recovery of balance amount of ` 300/- and the plaintiff deposited the amount in Court and complied with the decree passed by the learned trial Court. 4. Therefore, on this basis, the plaintiff alleged that he had purchased half share in the total property, i.e. entire shares of Gaitri Devi and Salochna Devi in the property in question. 5. Initially, the defendants filed a written statement through one Shri Om Prakash Sharma, Advocate, admitting the entire claim of the plaintiff and stated that they had no objection, in case the suit was decreed. Later on on 8th January, 1993, the -: 3 :- defendants put in appearance through Shri B.C. Thakur, Advocate, and stated that they were neither summoned nor served in the suit nor had they engaged Shri Om Prakash Sharma as their counsel and it was claimed that the written statement in the suit had not been filed by them. The plaintiff did not contest the application and the same was allowed and the defendants were permitted to file a written statement, in which they denied all the allegations made against them and specifically took the plea that in respect of the sale made in favour of Gaitri Devi, no sale consideration was paid to defendant No. 1. It was further averred that no agreement dated 01.01.1987 was executed nor did Gaitri Devi agree to sell her remaining 1/4th share in the property. The case set up by the defendants was that Chaman Lal got married to Gaitri Devi. She and her sister, Salochna Devi, were the only children of their parents, who died much earlier. Salochna Devi was a minor and there was none to look after the interest of the defendants. The plaintiff, Chaman Lal, effected marriage with Gaitri Devi with the intention of cheating and grabbing her property. He exploited both the defendants and by taking advantage of the fiduciary relationship between them, he used to procure thumb marks / signatures of defendants on several blank judicial papers and other printed forms from time to time on various pretexts. It was specifically pleaded that Salochna Devi was a minor on 02.05.1990, when the agreement by her was alleged to have been executed. It was also alleged that as far as the two suits allegedly filed by Gaitri Devi and Salochna Devi are concerned, they were -: 4 :- never filed by these persons, but the plaintiff, taking advantage of the fact that he had obtained their thumb marks/signatures on various occasions, got the suits filed. It is alleged that neither Gaitri Devi nor Salochna Devi had engaged Shri O.P. Sharma, Advocate, as counsel of the case. 6. Issues were framed and after trial, the learned trial Court came to the conclusion that Salochna Devi was a minor at the time when the agreement dated 02.05.1990 was executed and was not legally competent to execute the affidavit. The learned trial Court also came to the conclusion that the plaintiff has miserably failed to prove his case. The plaintiff filed an appeal and the learned lower Appellate Court upheld the order of the learned trial Court. It was found that the plaintiff has miserably failed to prove that he had, in fact, paid any amount to the defendants in terms of the sale deeds or the agreements allegedly executed by them. 7. As far as the agreement of Salochna Devi is concerned, I am of the opinion that both the Courts below were absolutely right in holding that she was a minor and, hence, not in a position to look after her interest. It is obvious that this document was got signed from her by the plaintiff taking advantage of the fact that he was married to the elder sister of Salochna Devi, i.e. Gaitri Devi. 8. Coming to the case of Gaitri Devi, it is important to note that the plaintiff virtually led no evidence whatsoever to show that he had paid the sale consideration payable as per the sale -: 5 :- deed or the amount payable in terms of the agreement. The amount involved were not small and once when the defendants had denied that they had received the sale consideration, the plaintiff should have led some evidence to show that he had, in fact, paid the sale consideration or the amount payable under the agreement. 9. Another important aspect is that according to the plaintiff, Gaitri Devi and Salochna Devi had filed suits against him for recovery of ` 300/-. It is unimaginable that anybody would engage a lawyer and file a suit for recovery of this small amount. The expenses of preparation of a suit and engaging a lawyer would be more than the amount which was sought to be recovered. Therefore, I am of the opinion that these suits were got filed by Chaman Lal. 10. It is also important to note that these suits have been purportedly filed by both Gaitri Devi and Salochna Devi through Shri Om Prakash Sharma, Advocate. The suit of Gaitri Devi was withdrawn on the ground that the amount was paid to her. The defendants have placed on record Ex. DW-1/A, which is a written statement allegedly filed by Gaitri Devi, in the divorce petition filed by Chaman Lal, through Shri Om Prakash Sharma, Advocate, in which she is alleged to have stated that she left the house of her husband in July, 1991. She virtually admitted the claim of the husband. On 05.12.1992, in this case also, she made a statement on oath that she had never engaged Shri Om Prakash Sharma. On the same date itself, Chaman Lal withdrew the petition for grant of divorce. -: 6 :- 11. The same Shri Om Prakash Sharma, Advocate, filed written statement in the present suit also on 29.06.1991 and after filing the written statement on behalf of the defendants, Shri Om Prakash Sharma, Advocate, did not appear. Only on 08.01.1993, the defendants again put in appearance through Shri B.C. Thakur, Advocate and stated that they had never engaged Shri Om Prakash Sharma, Advocate. According to the defendants, they were never summoned nor they had engaged any counsel. 12. On perusal of the suit file, I found that the suit was filed on 07.04.1992 and assigned to the Court of Sub Judge (I), Kullu. The case was then fixed for proper orders, office report etc. on 21.04.1992. No notices were issued to the defendants, i.e. Gaitri Devi and Salochna Devi, but Shri Om Prakash Sharma, Advocate, put in appearance for them on 21.04.1992. How could they have engaged a counsel, if they had not even been served in the suit. The written statement filed on their behalf admitting the claim of the plaintiff, obviously appears to have been manipulated by the plaintiff. Initially, the plaintiff wanted to obtain a decree on the basis of the admission, but in the mean time, the defendants engaged Shri B.C. Thakur, Advocate and put in appearance. Even in the divorce petition, Shri O.P. Sharma's role has not been above board. The manner in which he put in appearance on behalf of Gaitri Devi and virtually filed a written statement admitting the allegations made in the divorce petition creates a doubt whether he was engaged by Gaitri Devi. In that case also, Gaitri Devi had clearly stated that she had not engaged Shri O. P. Sharma and -: 7 :- disowned the reply filed by him and immediately thereafter, the plaintiff-husband withdrew the claim petition. This clearly shows that the plaintiff at every stage, tried to practice fraud upon the defendants, at every stage and, therefore, the Courts below were justified in not relying upon the statement of the plaintiff. 13. Therefore, I uphold the findings of the learned Courts below that the plaintiff is not entitled to any relief whatsoever. I find no merit in the appeal. Hence the same is dismissed. No costs. (Deepak Gupta) Judge October 10, 2011 (rajni)