Dismissed

Pushpa Devi v. Amro Devi

Himachal Pradesh HC2 Dec 2016RSA/4323/2013

Case brief

AI extract

What is this about?

In a regular second appeal concerning a dispute over possession of a shop, the High Court of Himachal Pradesh dismissed the appeal. The court held that the evidence document (Ex. Dx) was inadmissible due to the defendants failing to produce an authentic Urdu-to-Hindi translation witnessed by a translator. Consequently, despite the inadmissibility of the partition document, the suit property remain

What did the court decide?

Regular Second Appeal dismissed; judgments and decrees of lower courts maintained and affirmed.

Pushpa Devi Vs Amro Devi — Partition | Himachal Pradesh HC (2016)

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IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

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RSA No.4323 of 2013.

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Reserved on: 25th November, 2016.

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Date of Decision : 2nd December, 2016.

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Pushpa Devi & others

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..Appellants-Plaintiffs.

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Versus

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Amro Devi and others …. .Respondents-defendants.

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Coram:

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The Hon’ble Mr. Justice Sureshwar Thakur, Judge .

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Whether approved for reporting?¹ Yes.

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For the Appellants: Mr. Ajay Sharma, Advocate.

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For Respondent No.1: Mr. Sanjeev Bhushan, Senior Advocate with Ms. Abhilasha Kaundal, Advocate.

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Sureshwar Thakur, Judge

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Under the concurrently recorded renditions of both the learned Courts below, the suit of the plaintiffs stood dismissed, whereupon, theirs standing aggrieved, they through the instant appeal constituted herebefore concert to seek their reversal.

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1 Whether reporters of the local papers may be allowed to see the judgment?

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…2…

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Briefly stated the facts of the case are that the land comprised in Khata No. 366min, Khatauni NO. 584 min, Khasra No.1724, measuring 0-02-56 hectares situated at Mohal and Mauza Haripur, Tehsil Dehra, District Kangra, H.P, is abadi deh and the plaintiff is also co-sharer of this land. The plaintiff Mangat Ram, predecessor-in-interest of the present appellants had his shop consisting of four rooms on the ground floor and two rooms on the first floor on the above said khasra No. 1724. Previously, it was only one shop single storied slate roofed which was owned and constructed by the father of the plaintiff, Shri Nathu Ram and after his death in family settlement, the shop was given to Mangat Ram, plaintiff. The total value of this shop was fixed as Rs.2400/and the plaintiff paid Rs.800/- each to Hamir Chand and Minjroo, who were brothers of Mangat Ram. The plaintiff Mangat Ram became absolute owner of the shop in dispute. After getting the shop in the year 1980-81 the plaintiff converted the single storied shop in four rooms by giving partition walls and it was converted into four rooms and

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…3…

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similarly second story was also raised where to rooms were constructed. Shri Hamir Chand was serving away and was residing with his family outside the State of H.P., who came back in the village in the year 1990 after his retirement alongwith his family and household articles. Since old joint house was small and was not having sufficient accommodation to keep the articles brought by Hamir Chand, predecessor-in-interest of the defendants, Hamir Chand requested the plaintiff to give the room in dispute to keep the material/articles brought by him after his retirement. The plaintiff agreed and allowed Hamir Chand to keep the material in disputed room i.e. in one room of the first floor as shown by letters 'CDEF' in the map. The said Hamir Chand had agreed to vacate the accommodation after constructing his own house. The said Hamir Chand constructed his house in the year 1994-95, but even then he did not vacate the accommodation provided to him by Mangat Ram. The decree for possession of the room in question that is mentioned as

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…4…

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'CDEF' in the map in the first floor of the house has been sought.

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The suit was contested by the defendants by filing written statement wherein preliminary objections of maintainability, cause of action and estoppel have been taken. On merits, it has been submitted that the shop in question was joint family property of Mangat Ram, Hamir Chand and Minjroo Ram, which on 7.6.1982 along with other joint houses has been partitioned in family settlement by owners i.e. Mangat Ram, Hamir Chand, Minjroo Ram and Bishni Devi wife of Minjroo Ram with the help and intervention of respectables of village. The settlement was reduced into writing signed by co-sharers. This family settlement was made to keep peace and harmony among brothers and to enjoy the joint family property. The shop was valued and share of Minjroo Ram amounting to Rs.800/- was given to him which was received by him. Since, 7.6.1982 the plaintiff and defendants are owners of the shop. This shop was earlier having one room below and one room on the 1^st floor which

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…5…

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after settlement was converted into four rooms so it could be shared by the parties. The plaintiff and Hamir Chand are owners of the shop in equal shares. No amount of Rs.800/was paid to Hamir Chand. It is the plaintiff who had taken the ground floor of the shop from Hamir Chand on request. Therefore, dismissal of the suit is sought.

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The plaintiffs/appellants herein filed replication to the written statement of the defendants/respondents herein, wherein, they denied the contents of the written statement and re-affirmed and re-asserted the averments, made in the plaint.

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On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:-

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Whether the plaintiffs are entitled to the relief of possession, as prayed for?OPP

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Whether the suit is not maintainable?OPD.

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Whether the plaintiffs are estopped by their act, conduct and acquiescence from filing the suit?OPD

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Whether the joint family property including suit property has been partitioned on 7.6.1982, in family settlement by predecessor of parties, as alleged? OPD.

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…6…

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Whether the plaintiffs are absolute owners of suit property?OPD.

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Whether the defendants are co-sharers in the suit property?OPD.

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Relief.

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On an appraisal of evidence, adduced before the

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learned trial Court, the learned trial Court dismissed the suit of the plaintiffs/appellants herein. In an appeal, preferred therefrom by the appellants herein/plaintiffs before the learned first Appellate Court, the latter Court dismissed their appeal.

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Now the plaintiffs/appellants herein have instituted the instant Regular Second Appeal before this Court assailing the findings recorded in its impugned judgement and decree by the learned first Appellate Court. When the appeal came up for admission on 21.07.2014, this Court, admitted the appeal instituted herebefore by the plaintiffs/appellants against the judgment and decree of the learned first Appellate Court, on the hereinafter extracted substantial question of law:-

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…7…

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Whether impugned judgments and decrees passed by Courts below in law stand vitiated on account of misreading and mis appreciating of oral and documentary evidence with special reference of the statements of PW-1 to PW-5 and DW1 to DW4 and further Exts. PW/1 to Ex.PW5/A and DW2/A to DW1/A, thereby vitiating the impugned judgments and decrees?

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Substantial question of Law No.1:

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One Nathu had three sons,namely, Mangat Ram, predecessor-in-interest of the plaintiffs, Hamir Chand, predecessor-in-interest of the defendants and One Minjroo. The suit property stands located upon khasra No.1724. In the relevant revenue records, the suit property stands reflected to be in the joint ownership of the parties at contest, sequel, whereof is qua thereupon standing aroused the principle of joint tenancy wherewithin the trite legal nuance is held qua until its dismemberment occurs by metes and bounds, the recorded co-owners holding unity of title besides community of possession therein, whereupon any exclusive holding of possession by any of the co-owners of the jointly recorded suit property, renders his holding possession thereof to be construable to be possession also on behalf of the other recorded co-owners, thereupon he stands disabled to despite the factum of exclusivity of his possession, oust the

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…8…

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legitimate claim qua joint possession thereof of other cosharers besides any co-owner holding exclusive possession of joint property not holding any leverage to forestall other coowners to beget its partition by metes and bounds.

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Even if, assumingly, the defendants hold exclusive possession of the undivided suit property yet on anvil aforesaid with their possession thereupon in the capacity as co-owners along with the plaintiffs, would also frustrate the relief canvassed by them in their suit qua theirs holding entitlement to seek delivery of its possession vis-a-vis them unless of course on its standing partitioned by metes and bounds, it falls to their share whereupon on any resistance by the defendants to handover its possession to the plaintiffs, the latter would hold the facilitation to through the enjoined legal mechanism seek delivery of its possession from the defendants. The aforesaid inference visibly ousts the concert of the plaintiffs to through the instant appeal upset the concurrently recorded renditions of both the learned Courts below. Nonetheless, the learned Courts below under their

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…9…

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concurrently recorded renditions had declined relief to the plaintiffs on the anvil of the defendants successfully proving the factum of Ex.Dx comprising a family settlement holding recitals qua a partition occurring inter se the litigating parties hereat qua the hitherto undivided suit property , whereupon, they concomitantly pronounced qua with the defendants holding exclusive title qua the suit property, it thereupon, hence non suiting the plaintiffs.

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The original of Ex. Dx stands scribed in Urdu. For Ex. Dx, scribed in Urdu whereupon its contents were unreadable, except by a person who is well conversant in Urdu, enjoined the defendants to obtain an authentic translation thereof from a person well conversant in Urdu also they stood enjoined to lead into the witness box, the translator of Ex. Dx, who carried its translation from Urdu to Hindi whereupon, the translated version of Ex. Dx wasboth readable besides admissible in evidence. The aforesaid injunction cast upon the defendants for theirs thereupon efficaciously proving Ex. Dx stands uncomplied by them.

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…10…

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Contrarily only a photo copy of its Hindi translation stood adduced in evidence. The photostated copy of the Hindi translation of Ex. Dx neither discloses therein the name of the translator who carried its apposite translation nor obviously the person who carried the translation of Ex. Dx besides made its translation from Urdu to Hindi stood led into the witness box by the defendants, for facilitating him to during his testification on oath unravel qua his carrying out an authentic Hindi translation of Ex. Dx. The effect of the aforesaid omission of the defendants, in theirs thereupon efficaciously proving Ex. Dx besides its photostated Hindi translation rendered Ex. Dx besides its photostated Hindi translation to be both unreadable and inadmissible in evidence whereas both the learned Courts below visibly misdirected themselves in theirs concurrently imputing sanctity to Ex. Dx also to its photostated Hindi translation, whereupon they inaptly concluded qua with the suit property on its standing subjected to partition by metes and bounds inter se the parties at contest, its falling to the exclusive ownership of the

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…11…

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defendants thereupon the suit the plaintiffs warranting dismissal.

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Be that as it may, with efficacious proof not standing adduced by the defendants in the manner aforesaid qua the recitals embodied in Ex. Dx yet thereupon the suit property is to be construed to be joint besides undivided inter se the litigating parties whereupon exclusivity of possession thereon of the defendant would not till its dismemberment by metes and bounds, facilitate the plaintiffs to reclaim its possession from the defendants.

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The upshot of the above discussion is though with this Court concluding qua both the learned Courts below not properly appraising the import of Ex. Dx also in theirs imputing sanctity to it, theirs committing a gross error, nonetheless, for reasons aforesaid the suit of the plaintiff would not succeed. Consequently, the substantial question of law is answered in favour of the plaintiffs/appellants herein and against the defendants/respondents herein.

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…12…

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Though, In view of above discussion, the present

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Regular Second Appeal is dismissed. In sequel, the judgements and decrees rendered by both the learned Courts below are maintained and affirmed. All pending applications also stand disposed of. No order as to costs.

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(Sureshwar Thakur) 2^nd December, 2016. Judge. (jai)

Pushpa Devi v. Amro Devi

Case brief

What is this about?

What did the court decide?

Pushpa Devi v. Amro Devi

Case brief

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What did the court decide?

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