Harbhaj v. Duni Chand & Ors.

of the plaintiff were tenants of the Government of Himachal Pradesh under the Abolition of Big Landed Estate & Reform Act qua land comprised in Khewat No. 43, Khatauni No. 124, Khasra Nos. 684, 767, 768, 770, 774, 775, 778, 789, 781, 802, 905, 830, 831, 836, 838, 840, 865, 867, 869, 875, 876, 917, 918, 919, Kita 25, measuring 4-10-16 Bighas, situated in Village/Muhal Chhatter, Illaqua Kamlah, Tehsil Sarkaghat, District Mandi, HP and they acquired proprietary rights vide mutation No. 260, dated 21.02.1968. As per the plaintiff, his 3 father Durgu and his uncles, Dassu & Kanhu, were joint owners in possession of the aforesaid land. Khasra No. 767 was also in their joint ownership and possession. The father of the plaintiff without consent of his brothers got mutation No. 382, dated 10.02.1969 attested, which is wrong, illegal and cannot be executed/attested in the absence of his brothers more particularly qua Khasra No. 767 corresponding to new Khasra No. 2038. 3 It is the case of the plaintiff that the defendants never came in possession of the suit land till date, hence the entry of Khasra No. 2038 be adjudged wrong, illegal and not binding on the rights of the plaintiff. Mutation No. 382, dated

10.02.1969 was attested and compared by the concerned Kanungo on 09.02.1969 and on the very next day it was got attested by the AC 2nd Grade in the absence and at the back of other co-owners Kanhu & Dassu. The act of attestation of mutation was done in a haste manner and at the back of his forefathers. The defendants remained sleeping for over 47 years and never came in possession, but now under the garb of wrong entry, started threatening the plaintiff to dispossess and to raise construction, which act of the defendants is wrong, illegal and without any right. Therefore, it was 4 prayed that suit be decreed for declaration adjudging the plaintiffs and proforma defendants to be owners possession of the suit land and the entry showing the defendants as tenants without the payment of rent to be wrong, illegal and not binding on the rights of the plaintiff and the proforma defendants with consequential relief of injunction or in the alternative for possession. 4 The suit was resisted by defendant No.1 by filing written statement, wherein preliminary objections qua maintainability, cause of action, locus standi, etc. were raised. On merits, it was averred that defendant No.1 is owner in possession of the suit land as his father had purchased the same from father of the plaintiff vide mutation No. 382, dated 10.2.1969. It was denied that the land was in joint ownership of Kanhu, Durgu and Dassu and it was stated that they were in separate possession and their separate possession was recorded during the settlement. It was also denied that Khasra No. 767 was in possession of the father of the plaintiff. It was stated that father of the plaintiff was not required to take consent of other co- sharers i.e. his brothers. Brothers of the deceased Durgu or their legal representatives never challenged the sale or 5 mutation, therefore, the plaintiff was estopped to file the suit as he got no locus standi to do the same. 5 It is the case of defendant No.1 that Durgu never challenged the oral sale during his life time and even the plaintiff filed the suit in March 2018 when defendant No.1 sold the land measuring 00-01-38 hectares to defendant No.2. All the allegations as made in the plaint were denied and defendant No.1 prayed for dismissal of the suit. 6 Defendant No.2 filed separate written statement, wherein preliminary objections qua maintainability, cause of action, locus standi, etc. were raised. On merits, it was averred that neither the predecessor-in-interest of the plaintiff nor brothers of the plaintiff ever raised any question regarding mutation No. 382, dated 10.2.1969. All the allegations as made in the plaint were denied and defendant No.2 prayed for dismissal of the suit. 7 The plaintiff filed replication(s) to the written statement(s), wherein the contents of the plaint were reiterated. 8 On the pleadings of the parties, the learned trial court on 6.11.2019 framed the following issues:- 6

#1. Whether the mutation No. 382 is wrong and illegal being attested on the basis of illegal oral sale as alleged? OPP

#2. Whether the subsequent sale deed dated

02.09.2016 executed by defendant No. 1 in favour of defendant No. 2 is also wrong and illegal?OPP

#3. Whether plaintiff is joint owner in possession of the suit land, as alleged? OPP

#4. Whether defendants are causing interference in the possession of the plaintiff over the suit land, as alleged? OPP

#5. Whether plaintiff has no cause of action to file the present suit? OPD 1 & 2

#6. Whether plaintiff has no locus standi to file the present suit? OPD-1

#7. Whether suit is barred by limitation, as alleged? OPD 1 &2

#8. Whether suit has not been properly valued for the purposes of court fees & jurisdiction as alleged? OPD1 & 2

#9. Whether plaintiff is estopped to file the present suit by his own act and conduct, as alleged? OPD2

#10. Whether suit is not maintainable in the present form? OPD2

#11. Relief 9 The learned trial court directed the respective parties to adduce evidence in support of their contentions to 7 corroborate their respective case. The learned trial court vide its judgment and decree dated 01.10.2022 dismissed the suit of the plaintiff. 10 Feeling dissatisfied by the judgment and decree, dated 01.10.2022, plaintiff/appellant preferred an appeal before the learned first appellate Court on 23.11.2022, which came to be dismissed vide judgment and decree dated

12.05.2023. 11 Still feeling aggrieved by the aforesaid judgments and decrees, the plaintiff/appellant has preferred the present regular second appeal. 12 With the consent of the parties, the instant appeal finally heard at admission stage on the following substantial question of law:- Whether the judgments and decrees of both the learned Courts below are based on mis- appreciation and misinterpretation of the oral as well as documentary evidence placed on record? 13 It is contended by Mr. Rakesh Sharma, learned counsel for the plaintiff/appellant that the impugned judgments and decrees, as passed by the learned courts below, are erroneous and, thus, liable to be quashed and set 8 aside. He has submitted that the learned courts below have not taken into consideration the material placed on record in its right perspective. He has further submitted that after accepting the instant appeal, suit as filed by the plaintiff, deserves to be allowed. 14 On the other hand, Ms. Ridhi Verma, learned counsel for the respondents, has defended the impugned judgments and decrees as passed by the learned courts below. She has submitted that this Court while invoking provisions of Section 100 of CPC will not interfere with the concurrent findings, as rendered by the learned Courts below and, thus, has prayed for dismissal of the instant appeal. 15 I have heard the learned counsel for the parties and have also gone through the material available on the case file. 16 The plaintiff/appellant approached the learned trial court for seeking declaration for cancellation of oral sale and mutation No. 382, dated 10.02.1969 with consequential relief of injunction or in the alternative for possession under Sections 34, 37 & 5 of Specific Relief Act, 1963 on the ground that his father Durgu and his uncles, Dassu & Kanhu, were joint owners in possession of suit land including Khasra No. 9 767, however the father of the plaintiff without consent of his brothers got mutation No. 382 attested, which is wrong, illegal and could not have been executed in the absence of his brothers, more particularly, qua Khasra No. 767 corresponding to new Khasra No. 2038. According to the plaintiff, the defendants never came in possession of the suit land till date, hence the entry of the Khasra No. 2038 be adjudged wrong, illegal and not binding on the rights of the plaintiff and the proforma defendants. 17 Defendant No.1 contested the suit on the ground that he is owner in possession of the suit land as his father had purchased the same from father of the plaintiff vide mutation No. 382, dated 10.2.1969. As per case set up by defendant No.1, the suit, as filed by the plaintiff, does not furnish any cause of action and locus standi in favour of the plaintiff. Neither plaintiff nor his predecessor in interest ever challenged the oral sale and mutation No. 382, dated

10.2.1969 to this effect before any competent Court of law. 18 In order to corroborate his case, the plaintiff, Harbhaj, examined himself as PW1 and tendered in evidence his affidavit, Ext. PW1/A, wherein he reiterated the averments as made in the plaint. He has stated in his 10 affidavit that the land comprised in Khewat No. 150/148, Khatauni No. 237/235, bearing Khasra No. 2038, land measuring 00-01-45 hectares is situated in Village/Muhal Chhatter, Illaqua Kamlah, Tehsil Sarkaghat, District Mandi, HP. The predecessors-in-interest of plaintiff were tenants of the Government of Himachal Pradesh over the comprised in Khewat No. 43, Khatauni No. 124, Khasra Nos. 684, 767, 768, 770, 774, 775, 778, 789, 781, 802, 905, 830, 831, 836, 838, 840, 865, 867, 869, 875, 876, 917, 918, 919, Kita 25, measuring 4-10-16 Bighas, situated Village/Muhal Chhatter, Illaqua Kamlah, Tehsil Sarkaghat, District Mandi, HP and they acquired proprietary rights vide Mutation No. 260, dated 21.02.1968. He has further stated that his father Durgu and his uncles, Dassu & Kanhu, were joint owners in possession of the aforesaid land. Khasra No. 767 was also in their joint ownership and possession. His father without consent of his brothers got mutation No. 382 attested, which is wrong, illegal and liable to be rejected. He has stated that oral sale vide mutation No. 382, dated

10.02.1969 is without making any report to the Patwari concerned as per the requirement of H.P. Land Revenue Act and as per the H.P. Land Records Manual . 11 19 In cross-examination, PW1 has stated that as of today, the suit land is vacant and nothing has been constructed over it. He does not know that defendant No.1 had sold the suit land to defendant No.2 in the year 2016. He has stated that they got the suit land from Khatris. His father died about 40-45 years ago. He denied that the suit land was sold by his father to father of defendant No.1 He also denied that any mutation was attested in favour of father of defendant No.1 on 10.02.1969. He admitted that during the life time of his father, he never challenged the oral sale nor he instituted any legal proceedings in the competent court of law. 20 In order to rebut the case of the plaintiff, defendant No.1 Duni Chand, appeared in the witness box as DW1 and tendered in evidence his affidavit, Ext. DW1/A, wherein he reiterated the averments as made in the written statement. He stated that his father late Om Prakash had purchased the suit land comprised in Khasra No. 2038 measuring 00-01-45 hectares vide mutation No.382, dated

10.2.1969 and since then they are in peaceful possession of the same. He further stated that he sold the land measuring 00-01-38 hectares out of the suit land to defendant No.2 12 Tek Chand on 2.9.2016 through registered sale deed. After the sale, defendant No.2 started construction work of his house in the year 2016 over the land, which was sold by him. He stated that mutation was rightly attested by the Assistant Collector, 2nd Grade on 10.2.1969 and this mutation was never challenged by the plaintiff or any other person in the competent court of law. Father of the plaintiff Durgu had himself reported the matter to the Patwari regarding oral sale on 9.2.1969 and on the same day, the same was compared by the Kanungo and mutation was rightly attested in the name of his father. He stated that from the date of attestation of mutation till his last breath, father of the defendant No.1 remained in possession of the suit land and thereafter defendant No.1 is coming in possession of the same. However, when construction work of defendant No.2 was going on and he was ready to put slab, then the plaintiff filed the instant suit. 21 In his cross-examination, he admitted that at the time of purchase of the suit land, father of the plaintiff was owner in possession of the same. He denied that the plaintiff is owner in possession of the suit land. He stated that till 2016, there was no dispute over the suit land. 13 22 Defendant No.2, Tek Chand, appeared in the witness box as DW2 and tendered in evidence his affidavit, Ext. DW2/A. He stated in his affidavit that he is owner in possession of the land comprised in Khasra No. 2038/1 measuring 00-01-38 hectares after purchasing the same from defendant No.1 on 2.9.2016. He stated that after purchasing the land, he started constructing his house over Khasra No. 2038/1 in the year 2016 and laid down foundation of his house and also raised 9 pillars over Khasra No. 2038/1 and also constructed an underground room. He further stated that construction of his house remained continued till 2018. During this period, neither plaintiff nor anybody raised any objections regarding construction work over the purchased by him. He stated that the suit has been filed at the belated stage in order to harass the defendants. 23 DW3 Suresh Kumar also tendered in evidence his affidavit, Ext. DW3/A and stated that the land comprised in Khasra No. 2038/1 measuring 00-01-38 hectares is in exclusive ownership and possession of defendant No.2 Tek Chand. He worked as a mason in the construction work of Tek Chand and construction work continued upto 2 years and the plaintiff did not raise any objection. 14 24 DW4 Sunil Kumar, while tendering his affidavit, Ext. DW4/A in evidence, stated that Duni Chand had sold Khasra No. 2038/1 to Tek Chand in the year 2016 and Duni Chand also put Tek Chand into possession of the Khasra No. 2038/1 and thereafter Tek Chand started construction of his house by laying foundation of his house and raised 9 pillars thereon. He further stated that construction work of the house of Tek Chand remained continued for 2 years and during this period, the plaintiff did not raise any objection and Khasra No. 2038/1 is still in possession of Tek Chand. 25 Defendant No.1 in order to substantiate his case has placed on record copy of mutation No. 382, Ext. DW1/B and perusal whereof clearly reveals that father of the plaintiff namely Durgu had himself appeared before the revenue authorities and delivered the possession of the suit land to father of defendant No.1, Om Prakash for sale consideration of Rs.80/-. 26 The contention as raised by the learned counsel for the appellant/plaintiff that the possession of the suit land was never delivered to predecessor in interest of defendant No.1 is incorrect and falsified on the basis of copy of mutation, Ext. DW1/B. The plaintiff has failed to rebut the 15 document, Ext. DW1/B on the basis of which defendant No.1 became owner in possession of the suit land. 27 Learned counsel for the defendants/respondents have contended that the plaintiff has got no locus standi to assail the oral sale qua the suit land. She has submitted that when father of the plaintiff was alive, at that time plaintiff had acquired majority and even then neither he nor his predecessor-in-interest challenged the oral sale qua the suit land. She has further submitted that even uncles of the plaintiff never challenged mutation, Ext. DW1/B before any competent court of law and it is only the plaintiff, who challenged the same by way of instant suit. In case any person was at all aggrieved by attestation of mutation No. 382, it was father of the plaintiff, namely Durgu or his uncles, namely, Kanhu and Dassu, but, as observed above, neither father of the plaintiff nor his uncles or anybody laid any challenge to the same. 28 This Court is in agreement with the submission as made by the learned counsel for respondents that on the basis of oral sale between predecessors-in-interest of the plaintiff and defendant No.1, now defendant No.1 is owner in possession of the suit land and none of the parties ever 16 raised any objection qua the same and it is the plaintiff, who filed the suit, challenging the oral sale, on 23.11.2017 that too after elapse of about 47 years, which is hopelessly time barred. It is borne out from the record that factum of attestation of mutation No. 382 was well within the knowledge of the plaintiff and his father, Durgu, therefore, as rightly held by the Courts below the suit filed by the plaintiff was hopelessly time barred, which has been filed beyond period of limitation and on that count, the same deserves to be dismissed. There are concurrent findings of fact rendered by both the learned Courts below, which do not call for any interference by this Court. 29 It is vehemently contended by the learned counsel for the appellant that oral sale having been effected in the present case does not meet the requirements of Section 54 of the Transfer of Property Act, as such transfer in the case of tangible immovable property of value of Rs.100/- and upwards or in the case of a reversion or other intangible thing can be made only by a registered instrument. 30 To the aforesaid contention, learned counsel for the respondents has submitted that the sale consideration in the instant case is Rs.80/-, therefore, as per Section 54 of the 17 Transfer of Property Act, in case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Since in the instant case, as observed above, delivery of possession was made by father of the plaintiff father of defendant No.1, therefore, submission of the learned counsel for the appellant does not hold good. 31 The Hon’ble Supreme Court in catena of judgments has held that the first appellate is the final court of the fact. No doubt, second appellate court exercising the power under Section 100 CPC can interfere with the findings of fact on limited grounds such as - (a) where the finding is based on inadmissible evidence; (b) where it is in ignorance of the relevant admissible evidence; (c) where it is based on misreading of evidence; (d) where it is perverse, but that is not case in hand. 32 The Hon’ble Supreme Court while dealing with scope of interference under Section 100 in Hero Vinoth (minor) vs. Seshammal, (2006) 5 SCC 545 has held as under: 18 “18. It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 of the CPC. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section in several cases, the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. (AIR 1962 SC 1314) held that : "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those 19 principles or that the plea raised is palpably absurd the question would not be a substantial question of law. " 19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were erroneous being contrary mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence. 20. to 22 xx xx xx xx

#23. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It 20 will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.” 33 The Hon’ble Supreme Court in Annamalai vs. Vasanthi, 2025 INSC 1267, has held as follows:- “16. Whether D-1 and D-2 were able to discharge the aforesaid burden is a question of fact which had to be determined by a court of fact after appreciating the evidence available on record. Under CPC, a first appellate court is the final court of fact. No doubt, a second appellate court exercising power(s) under Section 100 CPC can interfere with a finding of fact on limited grounds, such as, (a) where the finding is based on inadmissible evidence; (b) where it is in ignorance of relevant admissible evidence; (c) where it is based on misreading of evidence; and (d) where it is perverse. But that is not the case here.

#17. In the case on hand, the first appellate court, in paragraph 29 of its judgment, accepted the endorsement (Exb. A-2) made on the back of a registered document (Exb. A-1) after considering the oral evidence led by the plaintiff-appellant and the circumstance that signature(s)/thumbmark of D-1 and D-2 were not disputed, though claimed as one obtained on a blank paper. The reasoning of the first appellate court in paragraph 29 of its judgment was not addressed by the High Court. In fact, the High Court, in one line, on a flimsy defense of use of a signed blank paper, observed that genuineness of Exb. A-2 is not proved. In our view, the High Court fell in error here. While exercising powers under Section 100 CPC, it ought not to have 21 interfered with the finding of fact returned by the first appellate court on this aspect; more so, when the first appellate court had drawn its conclusion after appreciating the evidence available on record as also the circumstance that signature(s)/thumbmark(s) appearing on the document (Exb.A- 2) were not disputed. Otherwise also, while disturbing the finding of the first appellate court, the High Court did not hold that the finding returned by the first appellate court is based on a misreading of evidence, or is in ignorance of relevant evidence, or is perverse. Thus, there existed no occasion for the High Court, exercising power under Section 100 CPC, to interfere with the finding of the first appellate court regarding payment of additional Rs. 1,95,000 to D-1 and D-2 over and above the sale consideration fixed for the transaction.

#18. Once the finding regarding payment of additional sum of Rs.1,95,000 to D-1 and D-2 recorded by the first appellate court is sustained, there appears no logical reason to hold that the plaintiff (Annamalai) was not ready and willing to perform its part under the contract particularly when Rs. 4,70,000, out of total consideration of Rs. 4,80,000, was already paid and, over and above that, additional sum of Rs.1,95,000 was paid in lieu of demand made by D-1 & D-2. This we say so, because an opinion regarding plaintiff’s readiness and willingness to perform its part under the contract is to be formed on the entirety of proven facts and circumstances of a case including conduct of the parties. The test is that the person claiming performance must satisfy conscience of the court that he has treated the contract subsisting with preparedness to fulfil his obligation and accept performance when the time for performance arrives.” 34 No other point was urged by the learned counsel for the parties. 22 35 Both the Courts below have rightly appreciated the point in controversy after considering the oral as well as documentary evidence placed on record and this Court does not find any illegality or perversity in the impugned judgments and decrees, as passed by the learned Courts below, and the same are upheld. The substantial question of law is answered accordingly. 36 In view of above, the present appeal being devoid of any merit deserves to be dismissed. Ordered accordingly. Pending application(s), if any, also stands disposed of. 06th July, 2026 (pankaj) (Romesh Verma) Judge