R.S.A. No. 409 of 2009. Case: Dhani Ram Vs Ajay Kumar and Ors.. Himachal Pradesh High Court

Case NumberR.S.A. No. 409 of 2009
CounselFor Appellant: K.D. Sood, Senior Advocate and Rajneesh K. Lal, Advocate
JudgesTarlok Singh Chauhan, J.
IssueCode of Civil Procedure, 1908 (CPC) - Order XLI Rules 22, 33; Sections 100, 35A, 96
Judgement DateMarch 29, 2017
CourtHimachal Pradesh High Court


Tarlok Singh Chauhan, J.

  1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 25.06.2009 passed by the learned Additional District Judge (Fast Track Court), Hamirpur, whereby he upheld the judgment and decree dated 24.12.1999 passed by the learned Sub Judge 1st Class (1), Hamirpur, dismissing the suit filed by the predecessor-in-interest, of the appellant.

    The facts of the case may be noticed thus.

  2. The original plaintiff Smt. Kaulan Devi had filed the present suit for possession against original defendants S/Shri Dalip Singh, Tara Chand and Major Kanwar Raghubir Singh, who died during the pendency of the suit and have been substituted by their legal representatives. The suit land is comprised in Khata No. 153, Khatauni No. 169, Khasra numbers Kita-11, land measuring 95 Kanals 11 Marlas, situated in Tika Batran, Tappa Kohla, Tehsil and District Hamirpur, H.P. as per jamabandi for the year 1953-54. It is averred that in the year 1955 Smt. Kaulan Devi, predecessor-in-interest, of the appellant was assured by defendant No. 1 to maintain her in future provided she made a gift in his favour and on this assurance Smt. Kaulan Devi executed a registered gift deed dated 24.06.1955 in favour of defendant No. 1 subject to her maintenance by the defendant. It was further averred that the defendant got wrongly incorporated in the gift deed that Smt. Kaulan Devi was being maintained for the last 15 years by him, though she was never maintained and looked after by the defendant. It was also averred that defendant No. 1 was serving in the Army and had been giving maintenance occasionally to Smt. Kaulan Devi, but for the last 2 years the defendant No. 1 failed to maintain as well as look after her. It was also averred that the gift deed was executed in lieu of maintenance and future services to be rendered by the defendant to Smt. Kaulan Devi and on failure of the defendant to render services as per custom prevailing amongst the parties, the gift deed stood revoked. It was further averred that the defendant No. 1 sold the suit land in favour of defendants No. 2 and 3 vide mutation No. 620 dated 06.04.1961 and thereafter during consolidation the suit land was partitioned. Hence, the suit for possession.

  3. The suit was contested by defendant No. 1 Dalip Singh by filing written statement in which he admitted the claim of the plaintiff and prayed that the suit be decreed as prayed for.

  4. The defendants No. 2 and 3 filed joint written statement in which preliminary objection was taken that the suit was collusive between the plaintiff and defendant No. 1. On merits, the contesting defendants denied the factum of failure of defendant No. 1 to maintain the plaintiff and to render services and they further averred that defendant No. 1 and paternal uncle of the plaintiff Shri Chaudhary had been rendering services to the plaintiff for the last 26 years and it is then that Smt. Kaulan Devi had executed a gift deed of the suit land in favour of defendant No. 1 without any condition as no such condition was incorporated in the mutation effected in pursuance of the gift deed executed by the plaintiff in favour of defendant No. 1. It was averred by the contesting defendants that in Civil Suit No. 16 of 1956 dated 24.07.1956 before Sub Judge, Hamirpur, the plaintiff and defendant No. 1 had admitted rendering services for the last 15 years and in lieu of that gift deed was executed. It was denied that the gift deed was revoked as there was no condition to render services and the contesting defendants averred that the plaintiff had collided with defendant No. 1 and thereby filed the present suit as the prices of the suit land had increased. The contesting defendants averred that they were bona fide purchasers of the suit land for a consideration for which the plaintiff had no objection, but later on she filed the suit in collusion with defendant No. 1.

  5. The learned trial Court on 05.04.1975 and 01.11.1975 framed the following issues:-

    1. Whether the parties are governed by custom in matters of alienation and gift? If so, what is that custom and whether under that custom, conditional gifts are revocable? OPP.

    1(a) Whether the gift in question is conditional? OPP.

    2. If issue No. 1 is proved, whether the gift in question is not revocable? OPD-2 & 3.

    3. Whether the suit is collusive and has been filed for the benefit of defendant No. 1? OPD.

    4. Whether the defendants No. 2 and 3 are bona fide purchasers of land in suit? If so, its effect? OPD.

    5. Whether the plaintiff is estopped by her act and conduct from filing the suit? OPD.

    5(a) Whether the defendant No. 1 has been and is rendering services to plaintiff as alleged by defendants No. 2 and 3? OPD-2&3.

    6. Relief.

  6. After recording the evidence and evaluating the same in...

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