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PETITIONER: BELI RAM & ANR.

       Vs.

RESPONDENT: SALIO RAM

DATE OF JUDGMENT24/11/1995

BENCH: FAIZAN UDDIN (J) BENCH: FAIZAN UDDIN (J) SEN, S.C. (J)

CITATION:  1996 AIR  757            1996 SCC  (7) 186  JT 1995 (8)   338        1995 SCALE  (6)584

ACT:

HEADNOTE:

JUDGMENT:                             JUDGMENT Faizan Uddin, J. 1.    This appeal at the instance of the plaintiffs has been directed against  the order  dated 3.7.1986 passed in R.S.A. No.  211/1986  dismissing  the  appeal  summarily  preferred against the  judgment and  decree dated  20.3.1986 passed by the Additional  District Judge  (II). Kangra at Dharamshala. HP) in  Civil Appeal  No. 11/1986 setting aside the judgment and decree  dated 14.12.1981  passed by  the Sub-Judge,  1st Class, Dnaramshala  in Civil  Suit No.  72/1980 whereby  the plaintiffs suit  for possession  of  the  land  in  suit  by redemption was decreed. 2.    This appeal has a chequered history the facts of which may be narrated thus:      Mehtaba. S/o  Ghelu Ram. resident of Village Rakkar had 1/12th share  in the agricultural lands in question. Mehtaba mortgaged the  same with  possession  with  Salig  Ram,  the defendant-respondent herein,  on 4.8.1937  for a  sum of Rs. 190/-. The  plaintiff appellant  No. 1 is the cousin of said Mehtaba and  plaintiff-appellant No. 2 Smt. Ramo Devi is the sister of  Mehtaba.  The  appellants  shall  hereinafter  be referred to  as plaintiffs  and the respondent as refendant. The plaintiffs  brought the  suit for  possession of land in question by  redemption contending  that mortgagor  of  land Mentaba was not heard of for the last more than 7 years and. therefore. he  is deemed  to be  dead under  the law and the plaintiffs being  the only  helrs of Mehtaba are entitled to redeem the  land. The  plaintiffs alleged  that they offered the mortgage amount of Rs. 190/- to the defendant requesting him to redeem the land by delivery of possession to them but the defendant  declined to  do so and hence they were forced to institute  the suit  for possession  by  redemption.  The defendant contested the suit by filing the written statement traversing the  aforementioned pleadings  of the plaintiffs. The defendant took preliminary objections to the effect that

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Mehtaba  was  not  dead  but  alive  and  that  neither  the plaintiff No.1  was cousin nor the plaintiff No.2 the sister of Mehtaba  and, therefore,  they  had  no  locus  stand  to institute the  suit for  redemption during  the life time of Mehtaba. The  defendant also  pleaded that  the suit was not filed within  time. The defendant pleaded that the plaintiff No.2 Smt. Ramo Devi had not appended her thumb impression on the plaint  or  Mukhtarnama  and  that  her  name  has  been fictitiously entered  by the  plaintiff No.1  in the plaint. The defendant  also pleaded  that by  their acts and conduct the plaintiffs are stopped from filing the suit. 3.   Initially the plaintiffs adduced evidence in support of their claim for  redemption but the defendant did not adduce any evidence  nor examined  himself  as  a  witness  on  his behalf.  Learned   Civil  Judge   accepting  the  unrebutted evidence of  the plaintiffs  decreed the suit for possession by redemption  by holding that Mehtaba has not been heard of for the  last about  20 years  and, therefore,  he would  be presumed to be dead and the plaintiffs being his legal heirs had a  right to  file the suit for redemption. The defendant went up  in appeal  before the  District Judge  against  the aforesaid Judgment  and decree  passed by  the  Senior  Sub- Judge. Kangra but the learned District Judge by his judgment dated 11.8.1975 affirmed the said decree passed by the Trial Court. In  the High  Court the defendant made an application for amendment  in  his  written  statement  as  by  then  he alongwith one Khushi Ram had obtained a compromise decree on 9.1.1973  against  Mehtaba  from  the  Court  of  Sub-Judge, Kangra. The  High Court by order dated 28.6.1978 allowed the application  of   defendant  for   amendment  of  a  written statement and as a consequence of amendment in the pleadings remanded the  case back to the Trial Court for a fresh trial after framing the additional issues which are as follows:-      1.   Whether  the   original  defendants      prove that the right, title and interest      of Mehtaba in the disputed property have      come to  an end on 9.1.1973 on the basis      of the  decree obtained by defendants in      Civil Suit  No. 223/1972  titled "Khushi      Ram and  another V.  Sh. Mehtaba" of the      Court of Sub-Judge, Kangra?      2. Whether  this decree has become final      and has  been executed as alleged by the      defendants?      3. Whether  the above  decree is legally      binding on the plaintiffs in view of the      fact that  they were  not parties to the      above referred Suit No. 223/1972?      4. Whether  Mehtaba  never  appeared  in      Suit  No.   223/1972.  and  whether  the      decree in the said suit is shown to have      been obtained  by the defendants through      fraud and  impersonation as  alleged  in      paragraph 4  of the  replication of  the      plaintiffs?      5. What  ultimate order should be passed      in the  suit in  light of  the  findings      recorded by Court on the above issues? 4.   After remand,  learned Sub-Judge  recorded the evidence as adduced  by the  parties on the aforementioned issues and again  decreed   the  plaintiffs   suit  for  possession  by redemption on  the findings  that Mehtaba  had died  a legal death for  not being heard of for more than 7 years and that the  compromise   decree  dated  9.1.1973  obtained  by  the defendant alongwith  one Khushi Ram against Mehtaba in Civil

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Suit No.  223/1972 was  obtained by fraud and impersonation. The defendant  challenged these  findings of the Trial Court in appeal before the District Court which was decided by the Additional District  Judge (II)  Kangra, being  Civil Appeal No.11/1986 who  by his judgment dated 30.3.1986 reversed the findings of  the Trial  Court, set  aside the  judgment  and decree and  dismissed the  suit of the plaintiffs by holding that it  was not  proved by  the plaintiffs that Mehtaba was not heard  of for the last more than 7 years and, therefore, he cannot  be deemed to be dead at the time of filing of the suit by  the plaintiffs on 30.12.1970 mainly on the basis of the statements  Ext.D3 and  Ext. D4 recorded by Tehsildar in an  enquiry   in  revenue   proceedings  initiated   on   an application alleged  to have  been made  by Smt.  Ramo Devi, plaintiff No.2 in respect of the mutation of the land in her favour. Learned  Additional District  Judge, therefore, took the view  that the plaintiffs had no locus stand to file the suit  for  redemption.  Learned  Additional  District  Judge relying on  the evidence  of Chaudhury  Ram. DW  3 and  Hari Singh, DW  4 further  held that  the compromise decree dated 9.1.1973 was not obtained by the defendant by practising any fraud or  misrepresentation.  The  plaintiffs  preferred  an appeal before the High Court of Himachal Pradesh against the aforementioned  judgment   and  decree   of  the  Additional District Judge.  but the High Court dismissed the appeal, as said earlier,  summarily on  11.9.1975  against  which  this appeal under  Article 136  of the  Constitution of India has been directed. 5. Learned  counsel  for  the  plaintiff-appellants  made  a vociferous attack  on the  findings recorded  by the learned Additional District  Judge with regard to Mehtaba as well as with regard  to the alleged compromise decree dated 9.1.1975 for specific  performance of  an agreement  which is said to have been  executed by  Mehtaba in  favour of the defendant- respondent and  one Khushi  Ram sometimes  in the  year 1966 which did  not see  the light  of the  day  till  after  the decision of  the plaintiffs suit twice for redemption by the learned  Civil   Judge.  He   submitted  that   the  learned Additional District  Judge took  the perverse  view by  mis- appreciation of evidence on record to the effect that it was not proved  that Mehtaba  was not  heard of  for more than 7 years prior  to the  institution of the suit for redemption. He also contended that the learned Additional District Judge fell in  serious error  in ignoring  to  take  note  of  the material facts showing that the alleged agreement of sale of land to  the defendant by Mehtaba was a rank forgery and the compromise decree  obtained by the defendant on the basis of the alleged agreement was but the defendant did not come out with the alleged agreement for sale or passing of compromise decree against Mehtaba till he filed the appeal on 22.2.1973 against  the   judgment  and   decree  against   him   dated 27.12.1972. From  these facts  it is  clear that  though the defendant  had   obtained  the  agreement  from  Mehtaba  on 13.4.1966  and  on  that  basis  had  already  pocketed  the compromise decrees  on 9.1.1973  yet he did not disclose the same in  the appeal  which was  filed on 22.7.1973. Further, the alleged  agreement is  said to  have  been  executed  by Mehtaba at  Dehra in favour of the defendant in the presence of Chaudhury  Ram, DW  3 and  Hari Singh.  DW  4.  Chowkidar resident of  Tikka Chauli. The story set up by the defendant for execution  of the  alleged  agreement  on  13.4.1966  by Mehtaba at  Dehra is surrounded by suspicious and mysterious circumstances which  could not be explained by the defendant and yet  he makes  us to  delive the story to be true. It is surprising to  note that  without any  pre-settlement or any

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intimation or  knowledge about  the whereabouts of Mehtaba - the defendant  happens to meet Mehtaba suddenly at Dehra and according to  Chaudhury Ram,  DW 3  near a  "People Ka Tala" (Chabutra) and  according to  Chowkidar. Hari Singh, DW 4 at the shop  of the  scrive Jagdish  where  the  agreement  was written and consideration was passed on to Mehtaba which was readily  available  with  the  defendant.  The  evidence  of Choudhury Ram,  DW 3  and Hari  Singh, DW 4 does not inspire any confidence  at all  and the  witnesses do not seem to be trust-worthy but  got up  witnesses. As  based on  fraud and misrepresentation.  He   also  submitted  that  the  learned Additional District  Judge was not justified in disturbing a well reasoned  judgment rendered  by the learned Trial Judge by substituting  his own  view passed on mis-appreciation of the evidence  on record  which could not be sustained in law and that  being the  High Court  was also  not justified  in dismissing the  appeal summarily.  After going  through  the entire evidence  on record  as well  as the  judgment of the Trial  Court   and  the   First  Appellate  Court,  we  find sufficient force  and merit  in the  submissions made by the learned counsel  for the  appellants - plaintiffs. According to us, having regard to the facts on record, the Trial Court had taken  a realistic and reasonable view in the matter but the learned  Additional District  Judge committed  a serious error in taking a superficial view of the evidence on record resulting into  miscarriage of  justice. In  our  considered opinion, there  was  no  justification  for  the  Additional District Judge  to upset  the findings and the High Court to dismiss the plaintiffs appeal summarily. 6. It  may be noticed that the alleged agreement for sale of the suit  land by  Mehtaba in  favour of  the defendant  and Khushi Ram  is said  to have  been executed  on 13.4.1966 at Dehra but  the defendant  did not disclose the said fact nor pleaded the same in his written statement filed on 17.6.1971 in the plaintiffs suit for redemption till it was decreed on 27.12.1972. Not  this pointed out earlier. Chaudhury Ram. DW 3 deposed  that the compromise deed was prepare near "People Ka Tala" at Dehra while Chowkidar Hari Singh deposed that it was prepared  by the  scrive Jagdish  at his  shop at Dehra. Though both  these witnesses do not belong to Dehra yet both of them reached at the appointed dated and time at the place where Mehtaba  is said  to be  present so that the defendant may struck the deal. 7. Apart  from the above facts there are other circumstances also which  cast a  serious doubt  on the case set up by the defendant  and   evidence  that   Mehtaba  had  executed  an agreement for  sale of  the Land  and then  entered  into  a compromise by  reason of  which compromise decree was passed on 9.1.1973  in Civil Suit No. 223/1972. The defendant Salig Ram was examined as DW 5. He deposed that notice of the suit was served  on Mehtaba  and thereafter  the  compromise  was effected but  he is unable to state as to on what address of Mehtaba the  said notice was served upon him. He then stated that Mehtaba  had given  his address  of Baij  Nath but when summons were  sent on  that address he was not found. He was unable to  say as  to on which address the summons were sent to him  thereafter. He  also stated  that he  did  not  know whether Mehtaba  had appeared personally in the Court at the time of  compromise. Later, he admitted that Mehtaba did not appear in  the Court  but his  counsel Shri  Dhani  Ram  had appeared on his behalf. The defendant Salig Ram also deposed that Shri  Hem Raj  was his  counsel in  the said  suit  but surprisingly enough the defendant neither examined Dhani Ram who is said to have represented Mehtaba in the suit filed by the defendant  for specific  performance of agreement nor he

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examined his  own counsel  Shri Hem  Raj to substantiate his stand that  in fact Mehtaba had entered into an agreement on the basis  of which the compromise decree dated 9.1.1973 was passed. Not  only this  but the  scrive Jagdish  Chander who admittedly was  alive at  the relevant time was not examined by the defendant in support of his stand but he preferred to examine only the interested persons like DW 3 and DW 4 whose evidence suffers  from serious  infirmities and  inspires no confidence. Having  regard to  these facts and circumstances the learned Additional District Judge was wholly unjustified in reversing the well reasoned c recorded by the Trial Court that the  defendant had  obtained the  compromise decree  by fraud and  misrepresentation. Having  regard to the evidence discussed above  no other  conclusion is  possible  and  the findings recorded by the Additional District Judge could not be upheld at all. 8. Almost similar is the position with regard to the finding about the  traceability of  Mehtaba. The  learned Additional District Judge ignoring the positive evidence adduced in the suit preferred  to rely  upon Ext.D3 which is an order dated 30-6-1977 passed  by  the  Sub-Judge,  Dehra  dismissing  in default the  C.M. Case  No.47-6/76 titled  as Beli  Ram  and another vs.  Khushi Ram  and the statement of one Ram Kishan Marked - D. which is said to be recorded by the Tehsildar in a Revenue  case in  the proceeding  relating to  mutation of land. It  may be  stated that  Ex. D/3 is not helpful as all nor relevant  to the  facts of  the present  case. It is not understandable as  to how  the learned  Additional  District Judge accepted  the said statement Mark - D to be admissible in the present case. While admitting the said statements the learned Additional District Judge placed his reliance on the decision in  Ram Pheran  Vs. Shri  Ram [A.I.R. 1947 Awadh P. 174] which  in fact  does not  help in  any  way.  There  is positive and  clinching evidence  of Gorkhu Ram. PW 3, Rasil Singh, PW  4. Ramesh Chand, PW 5 and Smt. Ramo Devi, PW 6 to show that in fact Mehtaba has not been traceable or heard of for the last more than 7 years before the institution of the suit. He  was not  even traceable  and heard  of during  the pendency of  the suit  and if  it was  for this  reason that probably he  could  not  be  produced  in  evidence  by  the defendant and  even service  of summons on him personally in the suit  instituted by defendant against Mehtaba appears to be very  doubtful. In these facts and circumstances there is absolutely  no   reason  to   disbelieve  the  testimony  of plaintiffs witnesses and the reasons assigned by the learned Additional District  Judge in  brushing aside their evidence are wholly  unfounded and unjustifiable. Consequently, there was no  justification to  reverse the  findings of the Trial Court and appeal, therefore, has to be allowed. 9. In  the result the appeal succeeds and is hereby allowed. The  judgment   dated  20.3.1986   passed  by   the  learned Additional District  Judge, Kangra  as well  as the order of the High Court dated 3.7.1986 are set aside and the judgment and decree  passed by  the Trial  Court  are  restored.  The defendant-respondent shall  bear his  own costs  and that of the plaintiffs throughout.