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Rattan Chand Etc. Vs. Smt. Sharab Chhozam - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtHimachal Pradesh High Court
Decided On
Case NumberSecond Appeal No. 338 of 1967
Judge
Reported inAIR1972HP87
ActsHimachal Pradesh (Courts), Order, 1948; ;Code of Civil Procedure (CPC) , 1908 - Sections 100 to 101 - Order 41, Rule 16; ;Evidence Act, 1872 - Sections 101 to 104
AppellantRattan Chand Etc.
RespondentSmt. Sharab Chhozam
Appellant Advocate B. Sita Ram, Adv.
Respondent Advocate Chhabil Dass, Adv.
DispositionAppeal dismissed
Cases Referred(Ishwar Dass Hem Raj v. Firm Radha Mal Arjan Dass). As
Excerpt:
- .....did not confer any title upon them.8. in this view of the matter, i do not find any compelling reasons to take a different view and accept the finding of the learned district judge. the appeal is accordingly dismissed with costs.
Judgment:

D.B. Lal, J.

1. This is plaintiff's second appeal and arises out of a judgment and decree dated 6th May. 1967 of the District Judge, Kinnaur. The plaintiffs Rattan Chand and another came to Court with the allegations, that one Girdhari Lal, who is husband of the defendant Sharab Chhozam, was the owner of a three-storeyed house situate in 'shamlat' Khasra No. 617/1 of village Chini in the Tehsil of Kalpa. Girdhari Lal had constructed this house after purchasing the land from 'shamlat'. He sold the said house to the plaintiffs on 12-1-1961 and he executed the sale-deed (Ex. PD) in favour of the plaintiffs. The house is actually in the occupation of tenants who were made defendants 2 to 4 In the suit. It was alleged that the defendant Sharab Chhozan has denied the title of the plaintiffs and the tenant-defendants 2 to 4 are paying rent to her. As such the suit was filed for a declaration that the plaintiffs are the owners of the house and for possession with a direction that the defendants 2 to 4 should be asked to pay the rents to the plaintiffs,

2. The defendants contested the suit on the allegations, that Sharab Chhozam defendant No. I is, no doubt, the wife of Girdhari Lal, but she is the owner of the house in her own right. It is she who constructed the house and that Girdhari Lal had nothing to do with it. She gave the house on rent to the defendants 2 to 4 and as such she receives rent from them. On these grounds, it was alleged that the sale-deed in favour of the plaintiffs is Invalid and they are not entitled to the decree claimed.

3. The learned Sub-Judge decreed the suit. He held that Girdhari Lal had purchased the site land after payment of Rs. 120/- and that he constructed the house. The sale-deed was held valid and binding' upon the defendants.

4. The defendants came in appeal before the learned District Judge and they succeeded inasmuch as that it was held that the receipt (Ex. PC) which disclosed payment of Rs. 120/-by Girdhari Lal for the 'shamlat' land, was a suspicious document which could not be relied upon. It was also held that house in dispute was constructed by the defendant No. I and with these findings, the plaintiffs' suit was dismissed.

5. The plaintiffs having been aggrieved with the judgment and decree of the learned District Judge have come up in this second appeal.

6. It is abundantly clear that the learned District Judge has given findings on fact that Rs. 120/- were not paid for the 'shamlat' land that the house was actually constructed by the respondent Sharab Chhozam. Since the second appeal has been filed under paragraph 32 of the Himachal Pradesh (Courts) Order, 1948, it may be stated that any ground which is a good ground of appeal before the District Judge could as well be a ground of appeal in this Court. As such the learned counsel for the appellants addressed me on questions of fact and wanted that the decision of the learned first appellate Court should not be sustained on the simple ground that he did not possess sufficient reasons to set aside the judgment of the trial Court which had the advantage of seeing the demeanour of witnesses. He relied upon AIR 1922 PC 39 (Naba Kishore Mandal v. Upendra Kishore Mandal).

In appeal, it may be stated that the burden of showing that the judgment appealed from is wrong, is upon the appellant. If all he can show fs nicely balanced calculations which lead to the equal possibility of iudgment, on either the one side or the other, being right, he cannot be said to have succeeded. The learned counsel urges that this rule should have guided the first appellate Judge.

A similar observation was made in AIR 1960 Punj 417 (Ishwar Dass Hem Raj v. Firm Radha Mal Arjan Dass). As such this would lead us to go into the evidence adduced by the parties. It goes without saying that the receipt (Ex. PC) once discarded renders the case of the appellants extremely weak. It is evident that the receipt (Ex. PC) did not disclose any khasra number and so it could not be stated that it related to the land In dispute. The receipt is not mentioned in the plaint, nor was it filed at any early stage. It is also difficult to believe that only two persons about whom we do not know if they represent the village community, could transfer the suit land from the 'shamlat' of the village. Thakur Lal (PW. 2) stated that only Rs. 100/- were needed for payment in respect of the land. This is apparently wrong because the consideration is stated to be of Rs. 120/-. Maya Dass (PW. 4) significantly stated that their receipt was to specify the name of Sharab Chhozam as well. This is a circumstance to prove that she might be the owner of the suit land. No mutation in revenue papers was effected on the basis of this receipt. The receipt was not even put to Girdhari Lal (PW. 5) when he appeared in the witness-box. All these circumstances decidedly lead to the inference that the receipt (Ex. PC) was suspicious in character.

If we follow the rule of guidance set out in AIR 1922 PC 39 (ibid), the appellants have only succeeded in showing a nicely balanced calculation during the course of arguments. The inference drawn by the first appellate Judge could as well be drawn on the basis of these circumstances relating to the receipt (Ex. PC). We would, therefore, discard the receipt (Ex. PC) and hold that Girdhari Lal is not proved to be the owner of the suit land.

7. With this finding, the learned District Judge was also justified in disbelieving the evidence of the plaintiffs and he rightly held that the house was constructed by the respondent. The rent-deed already exists in her favour. It is also admitted by Girdhari Lal himself that she used to take part in the construction work. As such, the disputed house belonged to the respondent No. I and the sale-deed in favour of the plaintiffs did not confer any title upon them.

8. In this view of the matter, I do not find any compelling reasons to take a different view and accept the finding of the learned District Judge. The appeal is accordingly dismissed with costs.


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