Amita Sood Vs Harmesh Kumar and Ors.

For the Appellant: Mr. Adarsh K. Vashista, Advocate. For the Respondents: Mr. B.M. Chauhan, Senior Advocate with Mr. Amit Himalvi and Ms. Kamakshi Tarlokta, Advocates, for respondents No.1 to 4 and 8(iii). Mr. Varun Rana, Advocate, for respondents No. 9(ii) to 9(iv), 9(vi), 10(iii), 11 to 13, 15(i) to 15 (iii).

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Romesh Verma, Judge (Oral).

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The present appeal arises out of the judgment and decree, as passed by learned Additional District Judge, Sundernagar, District Mandi, H.P. dated 31.03.2023, whereby the appeal filed by the present appellant was dismissed and the

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

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judgment and decree, as passed by learned Civil Judge Senior Division), Court No.1, Sundernagar, District Mandi, H. P., dated 30.06.2015, was afÏrmed whereby the suit filed by the plaintiff/appellant for declaration and possession was dismissed.

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The brief facts of the case are that the plaintiff/appellant had filed a suit for declaration and possession before the learned trial Court. It has been averred that the plaintiff is owner of the land comprised in Khewat/Khatauni No. 55 min/72 Khasra No.57, measuring 0-11-18 bigha share out of total land measuring 0-12-4 bigha, situated in Muhal Kanaid/6, Tehsil Sundernagar, District Mandi, H.P. The plaintiff has purchased the suit land from Smt. Guti d/o Durgu, vide sale deed No.716, dated 2.12.1992, registered before Sub Registrar Sundernagar, District Mandi, H.P. on 02.12.1992. The said Smt. Guti put the plaintiff in possession of the suit land on dated 02.12.1992 and thereafter the plaintiff remained in possession of the suit land till 28.06.2009, the date on which plaintiff was dispossessed by the defendants No.1 to 7 forcibly and refused to admit the title of plaintiff over the suit land. It has been averred that the defendants are claiming

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themselves to be the owners of the suit land on the basis of sale in

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favour of late Sh. Ram Lal s/o Sh. Shyamu, the predecessor-in-

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interest of defendants No.1 to 8, mentioned in mutation No.903 dated 6.01.1994.

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As per the plaintiff, the aforesaid mutation entry in favour of Sh. Ram Lal, the predecessor-in-interest of defendants No.1 to 8 is totally wrong and illegal and not binding upon the

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rights of the plaintiff. Consequently, the suit was filed by the plaintiff seeking declaration that the plaintiff is owner in possession of the suit land and the sale/transfer in favour of late Shri Ram Lal s/o Sh. Shyamu and mutations thereof qua the suit land in his name be declared as null and void. Further, it was prayed that defendants No.1 to 7 be directed to handover the possession of the suit land to the plaintiff.

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The suit was contested by defendants No.1, 3, 5, 6 and 7 by filing written statement raising various preliminary objections

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with respect of maintainability, estoppel, cause of action and non joinder etc. On merits, it was averred by the said defendants that

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the suit land was already sold by Durgu, father of Smt. Guti in

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favour of Ram Lal, the predecessor-in-interest of defendants in the

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year 1960 and in that regard necessary mutation No.1561 was duly attested on 31.01.1960 in favour of Ram Lal. Smt. Guti was neither owner nor in possession of the suit land as such she was having no legal right, title and interest in the suit land, as such, she was not competent to execute the sale deed in favour of the plaintiff. Further, it has been averred that deceased Ram Lal purchased the suit land from Durgu in the year 1960 and since

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then Shri Ram Lal and after his death his legal

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heirs/representatives are in possession of the suit land as owners continuously till today and revenue entries to this effect are true and correct. Consequently, it was submitted that the suit filed by the plaintiff is without any basis and the same deserves to be

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dismissed.

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Defendant No.2 Shri Bishan Dass filed separate written statement. He has reiterated the averments as made by other defendants in the written statement. He has averred that Shri Ram Lal purchased the suit land in the year 1960 and since then

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Ram Lal and after his death, his legal representatives are

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continuously in possession of the suit land till date when the suit

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was filed by the plaintiff.

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The following issues came to be struck by the learned trial Court on 06.01.2015:-

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“1. Whether the plaintiff is owner in possession of the suit land on the basis of sale deed No. 716 dated 2.12.1992, as alleged? OPP.

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Whether the mutation No. 903 dated 6.1.1994 and thereafter, mutation No.917 dated 26.2.1994 in favour of Ram Lal, predecessor-ininterest of defendants No.1 to 8 are wrong and illegal? OPP.

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Whether the mutation of inheritance of Ram Lal, Kewal Kumar and Bimla Devi are wrong and illegal?OPP

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Whether the mutation of sale in favour of defendant No.4 dated 30.11.2007 is wrong and illegal?OPP.

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Whether the plaintiff is entitled to decree for declaration qua ownership in possession?OPP

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Whether in alternative, the plaintiff is entitled to possession of the suit land?OPP.

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Whether the suit is not maintainable?OPD.

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Whether the plaintiff is estopped to file the present suit?OPD

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Whether the plaintiff has not come to the court with clean hands?OPD.

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Whether the suit is time barred?OPD.

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Whether the suit is bad for non-joinder and mis-joinder of necessary parties?OPD.

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Whether the plaintiff has no cause of action? OPD.

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Relief.”

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Learned trial Court directed the respective parties to

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adduce evidence in support of their contentions and finally, vide its judgment and decree dated 30.06.2025, the suit filed by the plaintiff was dismissed by the learned trial Court.

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Feeling dissatisfied, the plaintiff/appellant preferred

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an appeal under Section 96 of the CPC before the Court of learned

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Addl. District Judge, Sundernagar, District Mandi, H.P. on 17.09.2015. Learned first appellate Court vide its judgment dated 31.03.2023 dismissed the appeal as preferred by the appellant/plaintiff.

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Still feeling aggrieved, the plaintiff/appellant has preferred the present regular second appeal.

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With the consent of the parties the appeal is finally

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heard at the admission stage on the following substantial question

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of law:

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Whether the judgments and decrees, as passed by the learned Courts below, are the result of misinterpretation and misconstruction of oral as well as documentary evidence as placed on record?

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It is contended by Mr. Adarsh K. Vashista, learned

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counsel for the plaintiff/appellant that the judgments and decrees

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as passed by the learned Courts below are erroneous and are liable to be quashed and set aside. He has further submitted that since Guti Devi had sold the suit land to the plaintiff, therefore, on the basis of title the suit filed by her ought to have been decreed by the learned trial Court. He further submits that the learned Courts below have misread and misappreciated the oral as well as documentary evidence as placed on record. He has further submitted that after accepting the present appeal, the suit as filed

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by the plaintiff deserves to be decreed.

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On the other hand, Mr. B.M. Chauhan, learned Senior Advocate assisted by Mr. Amit Himalvi, learned counsel for the respondents/defendants has defended the impugned judgments

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and decrees passed by the learned Courts below. He has further submitted that the findings of fact recorded by both the learned courts below do not call for any interference. He has further submitted that while invoking the provisions of Section 100 of the CPC, this Court has limited jurisdiction to interfere with the concurrent findings of facts until and unless this Court is satisfied that the judgments and decrees, as passed by the learned courts below are perverse. According to him, there is no illegality, perversity and infirmity in the impugned judgments and decrees, therefore, the present appeal be dismissed.

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I have heard learned counsel for the parties at length and have also gone through the entire material on record carefully.

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The case as setup by the plaintiff before the learned trial Court was that on the basis of sale deed, Ex.PW2/B, which was executed on dated 02.12.1992, she is owner in possession of the suit property. On the strength of mutation No.1561 dated 30.01.1960, she was dispossessed by the defendants unlawfully from the suit land.

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In order to substantiate her case, the plaintiff has

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placed on record copy of sale deed dated 02.12.1992, Ex.PW2/B.

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By placing reliance upon the aforesaid document, learned counsel

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for the appellant has vehemently submitted that the plaintiff derived the title by virtue of sale deed, Ex.PW2/B whereby she had purchased the suit land from Smt. Guti Devi daughter of Shri Durgu. Plaintiff Amita Sood, in order to substantiate her

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contention, has examined herself as PW-2 and has tendered in evidence her afÏdavit, Ex.PW2/A. In her testimony, she has reiterated the averments made in the plaint. It has been stated that she has purchased the suit land from Smt. Guti vide sale deed No.716, dated 02.12.1992 registered before Sub Registrar Sundernagar, District Mandi, H.P. on dated 02.12.1992. She remained in possession of the suit land till 28.06.1999, the date on which she was dispossessed by defendants No.1 to 7 forcibly and they refused to admit her title on the suit land. Thereafter, she made inquires and found that defendants No.1 to 7 are claiming themselves to be owner of the suit land on the basis of sale in favour of their predecessor-in-interest late Sh. Ram Lal, mentioned

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in mutation No.903 dated 06.1.1994. She has stated that mutation

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is wrong and illegal and defendants have not derived title from Shri Ram Lal.

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As per plaintiff, after the transfer of the suit land by way of registered sale deed, the plaintiff is the real owner of the suit land. In cross-examination, she has denied that the suit land was purchased by Ram Lal from Durgu. She has feigned ignorance that according to rapat No.269, dated 30.01.1960, Ex. D- 1, Durgu had sold the Khasra No.1465/1 to Ram Lal. She has stated that she does not know that pursuant thereto, mutation was attested on 30.01.1960. She has denied that the suit land is in possession of Ram Lal s/o Shri Shyam Lal She has further denied that after the death of Ram Lal, his legal heirs are in possession of the suit land. She has stated that when she purchased the land, at that time, she did not peruse the copy of jamabandi in the Tehsil ofÏce. In the record room, she has not seen the document of cancellation. When she purchased the suit land, the same was vacant. She has further stated that when she purchased the suit land from Guti Devi, at that time, her son

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Ganga and her husband were accompanying her. She has further

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stated that, till 2009, the plaintiff was in possession of the suit land. Thereafter, she came to know that the defendants attested the mutation qua the suit land in their favour fraudulently. She has admitted that she did not participate in the consolidation proceedings and she does not know what action was taken by the revenue ofÏcials at the time of the consolidation. She had not assailed the findings of the consolidation proceedings. She denied that the mutation attested in her favour was cancelled on 19.03.1993. She has stated that she does not know that after consolidation, the suit land was numbered as khasra No.57. She denied that the defendants are owners in possession of the suit land.

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PW-1 is Maya Devi, Registration Clerk, Tehsil OfÏce Sundernagar. In her deposition, she has stated that she has brought the record pertaining to the sale deed executed by Guti Devi through her power of attorney Ganga Ram and according to the record, it is registered as document No.716, bahi No.1, dated

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02.12.1992. She has stated that she has seen the sale deed and

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the same is correct as per the record.

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In order to rebut the case of the plaintiff, the defendants examined DW-1 Harmesh Kumar. He has tendered in evidence, his afÏdavit, Ex.DW1/A, wherein, he has stated that the suit land is owned and possessed by the defendant and that the plaintiff has no right, title or interest over the suit land land. Ram Lal, the father of defendants No. 5, 6, 8(i) to 8(iii) and father in law of defendant No.7 and 8(iv) had purchased the land comprised Khewat No. 215/583, Khasra No.1465/1, measuring 1-8-0 bighas for consideration of Rs.900/- situated in revenue village Bhour, (now Kanaid) Tehsil Sundernagar, District Mandi, H.P. from Sh. Durgu s/o Brestu on 29.01.1960. To this effect rapat No.269, dated 27.01.1960 was got recorded by Shri Durgu on 29.01.1960 with the

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Patwari Halqua Bhour and on the basis of rapat No.269, dated 29.01.1960, mutation No.1561 was entered and attested in the presence of Durgu s/o Sh. Brestu by the Assistant Collector 2^nd Grade, Sundernagar on 31.01.1960, Durgu had acknowledged that

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he sold Khasra No.1465/12 measuring 1-8-0 bighas for

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consideration amount of Rs.900 and he has received the consideration of Rs.900/- and the possession of the aforesaid land has been delivered to the vendee. This witness further stated that after the attestation of the mutation, khasra number of the suit land was changed from 1465/1 to 2519/1465. Since then during his life time, Shri Ram Lal was owner in possession of the suit land. He stated that after settlement operation, the revenue village Bhour was bifurcated in two Muhals, one Bhour and second Kanaid and the suit land comes under the revenue village Kanaid. He further stated that during the consolidation proceedings due to some mistake the land of Sh. Ram Lal, the predecessor-ininterest of defendants No. 1 to 7 and 8(i) to 8(iv) was reduced and khasra No. 57, which was owned by Shri Ram Lal, was recorded in the name of Guti Devi daughter of Shri Durgu. He stated that Smt. Guti Devi was not having any right, title and interest over khasra No.57, however, she, by taking the advantage of the wrong revenue entries, executed the sale deed in favour of the plaintiff, which is illegal and wrong. Thereafter, Ram Lal had filed proceedings under Section 54 under H.P. Holding (Consolidation

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and Prevention of Fragmentation) Act, 1971 before the Director Consolidation and Holding, Shimla and the appeal filed by Ram Lal was accepted and the case was remanded to the Consolidation

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OfÏcer.

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As per DW-1 Harmesh Kumar, the Consolidation OfÏcer inquired into the matter and has made the deficiency good and Khasra No.57 was allotted to Ram Lal. He further stated that since 29.01.1960 till today, firstly the land remained in the ownership and possession of Sh. Ram Lal and after his death the land is in the ownership and possession of defendants No.1 to 7 and 8(i) to 8(iv). He further stated that the suit land never remained in the ownership and possession of plaintiff and Guti Devi and others. The sale deed executed by Guti Devi in favour of

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the plaintiff is illegal, wrong and void abintio. In the crossexamination, the plaintiff could not extract anything favourable from him.

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Perusal of the oral evidence in conjunction with the documentary evidence as placed on record shows that the suit land was purchased by Ram Lal, the predecessor-in-interest of the

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defendants from Shri Durgu son of Brestu on 29.01.1960. Rapat No. 269, dated 29.01.1960 was made in the record of rights. Ex. D-

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1 reflects that on 29.01.1960, the suit land was sold in favour of Ram Lal, the predecessor-in-interest of the defendants. On the basis of rapat No.269, the necessary mutation bearing No. 1561, Ex.DW1/B was attested by the Assistant Collector, Sundernagar on 31.01.1960. In the said mutation, Durgu had acknowledged that

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he has sold Khasra No. 1465/1 measuring 1-8 bighas of land for consideration of Rs.900/- to late Shri Ram Lal. Late Shri Durgu had also acknowledged receipt of consideration amount of Rs.900/- and that the possession was handed over to the vendee on the said date.

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Once, the suit land was sold by late Shri Durgu in favour of Ram Lal, the predecessor-in-interest of the defendants, in that event, Guti could not have been executed any sale deed, on the strength of wrong and illegal revenue record, in favour of the plaintiff. It has come on record that Ram Lal, the predecessor-ininterest of the defendants had approached the Director, Consolidation and Holding, Shimla under Section 54 of the H.P.

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Holding (Consolidation and Prevention of Fragmentation) Act, 1971 for making the deficiency good as khasra No. 57 was wrongly shown to be in possession of Guti Devi. The application filed by Ram Lal, the predecessor-in-interest of the defendants was allowed and the said khasra No. 57 was allotted to Shri Ram Lal by the Consolidation OfÏcer. Therefore, the sale deed, which has been executed by Guti Devi in favour of the plaintiff is nonest, null and void. Land which was already sold in the year 1960 in favour of Shri Ram, the predecessor-in-interest of the defendants, could not have been again sold to the plaintiff.

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The learned courts below have rightly come to the conclusion that when Guti Devi had no title or ownership with respect to the suit land on 2.12.1992, she could not have conveyed a valid title in favour of the plaintiff. The case of the plaintiff is based on the sale deed, Ex.PW 2/B, which is invalid on the face of record as Guti Devi had no valid title to convey any right, title or interest with the respect to the suit land in favour of the plaintiff. Once, the father of Guti, Shri Durgu had already conveyed the title with respect to the suit land in favour of Ram Lal, the predecessor-

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in-interest of the defendants in the year 1960, the title of the

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defendant could not be affected on the strength of sale deed dated 02.12.1992 as Guti Devi had no title over the suit land, which already stood sold by her father Durgu in favour of the predecessor-in-interest of the defendants.

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From the perusal of the revenue record, which has been placed on record, it reveals that the possession of the plaintiff is nowhere reflected and it falsifies the case of the plaintiff that after the sale, she became owner in possession of the suit property. Jamabandi, Ex.PW2/C, as placed on record, shows the possession of defendants No.1 to 8 with respect to the suit land. Thus, the plaintiff has failed to establish ownership and possession over the suit land in the present case. The learned Courts below have rightly concurrently come to the conclusion that no relief can be granted to her on the strength of sale deed dated 02.12.1992. It has also been rightly pointed out by the learned senior counsel for the respondents that since there are concurrent findings of fact, while exercising the power under

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Section 100 of the CPC, this Court will not re-appreciate the evidence placed on record.

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The Hon’ble Supreme Court while dealing with scope of interference under Section 100 in Hero Vinoth (minor) vs.

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Seshammal, (2006) 5 SCC 545 has held as under:

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“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

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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 :

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"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 difÏculty 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 principles or that the plea raised is palpably absurd the question would not be a substantial question of law.

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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

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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 to the 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

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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 will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration

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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.”

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The Hon’ble Supreme Court in Annamalai vs. Vasanthi,

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2025 INSC 1267, has held as follows:-

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“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 plaintiffappellant 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 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

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exercising powers under Section 100 CPC, it ought not to have 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 16 evidence available on record as also the circumstance that signature(s)/thumbmark(s) appearing on the document (Exb.A2) 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.

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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

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treated the contract subsisting with preparedness to fulfill his obligation and accept performance when the time for performance arrives.”

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