Jatinder Paul Vs Kaushalaya Devi and Ors.

¶1

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

¶2

RSA No. 294/2024 Reserved on: 25.05.2026 Decided on: 15.06.2026

¶3

Jatinder Paul …..Appellant Versus Kaushalaya Devi & ors. ….Respondents

¶4

Coram:

¶5

The Hon’ble Mr. Justice Romesh Verma, Judge.

¶6

Whether approved for reporting?¹ Yes

¶7

For the Appellant: Mr. Sanjeev Kuthiala, Senior Advocate with Ms. Tamana Sharma, Advocate. For the Respondents: Mr. Viplav Sharma, Senior Advocate with Mr. Dalip Kumar, Advocate, for respondents No. 1 and 2.

¶8

Romesh Verma, Judge

¶9

The present appeal arises out of the judgment and decree, dated 03.09.2024, as passed by the learned Additional District Judge, Palampur, District Kangra, H.P., whereby the appeal filed by the present appellant/plaintiff has been dismissed and the judgment and decree, dated 31.07.2013, as passed by the learned Civil Judge (Junior Division), Baijnath,

¶10

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

¶11

2

¶12

District Kangra, H.P., dismissing the suit of the

¶13

appellant/plaintiff, has been affirmed.

¶14

2 Brief facts of the case are that the appellant/plaintiff, Jatinder Paul, filed a suit for declaration and permanent prohibitory injunction against the respondents/defendants No. 1 to 3, namely, Kaushalya Devi, Chander Kanta and Gujru Ram, in the Court of Civil Judge (Jr. Div.), Baijnath, District Kangra, H.P. on 11.08.2011. It was averred in the plaint that the land bearing Khata No. 168, Khatauni Nos. 282 to 285, Khasra Nos. 864, 866, 867, 869, 857, 858, 859, 868, 1175/820, 832, 882, 883, Kita 12, measuring 1-39-73 hectares, situated at Mohal Kotli, Mauza Bir, Tehsil Baijnath, District Kangra, H.P. is jointly owned and possessed by the plaintiff with defendants No. 1 to 3 and proforma defendants No. 4 to 12. The predecessor-in-interest of defendants No. 1 and 2 had purchased the land in Khata No. 4, specifically in Khasra Nos. 882, 832, 883 on 24.01.1974 after proper demarcation and since then, they were in possession. The plaintiff with other co-sharers is also recorded as one of the co-sharers in the specific Khasra Nos. 857, 858, 859 and 868 in the suit land as per the revenue record.

¶15

3 It was further averred that defendants No. 1 and 2 initiated the alleged partition proceedings with respect to the

¶16

3

¶17

suit land, however they kept the plaintiff away from contesting the partition proceedings with respect to the suit land before the concerned revenue authority fraudulently, misrepresenting and without any notice to the plaintiff or his predecessor-ininterest, as a result of which, defendants No. 1 to 3 succeeded in getting the land mutated in their favour behind the back of the plaintiff in connivance with the concerned revenue officials which is in possession of the plaintiff. Though, other cosharers and proforma defendants No. 4 to 12 are having no dispute with the plaintiff, however they have been impleaded as party being necessary for the purpose of the suit. The defendants No. 1 and 2 fraudulently and on misrepresentation filed partition proceedings of Khata Nos. 2 and 3 of jamabandi for the year 1991-92 and thereafter, the said Khata numbers were incorporated as Khata Nos. 139 and 140 in the jamabandi for the year 2001-02, whereas defendant Nos. 1 and 2 did not apply for partition of the land, in which one Saran was recorded as tenant i.e. Khata No. 3 of the jamabandi for the year 1991-92, which corresponds to Khata No. 140 of jamabandi for the year 2001-02.

¶18

4 As per the plaintiff, defendants No. 1 and 2 had filed partial partition proceedings as per revenue record of 2001-02 instead of 1991-92. The alleged partition and mutation

¶19

4

¶20

to this effect is only a paper entry and the plaintiff is not bound by the alleged partition, which is prima facie, illegal, wrong and is result of fraud, which has been committed on the

¶21

plaintiff. Therefore, prayer was made to decree the suit, thereby, declaring the revenue entries, depicting the defendants No. 1 to 3 as owners in possession of the suit land and mutation No. 826, dated 22.11.2010, to be wrong, null, void and not binding on the plaintiff. Decree for injunction was also sought, thereby restraining defendants No. 1 to 3 from interfering over the possession of the plaintiff in any manner. 5 Defendants No.1 to 3 contested the suit by filing written statement, wherein preliminary objections, qua maintainability, cause of action, limitation, locus standi, estoppel, suppression of the facts etc. were raised. On merits, it was averred that the suit land was earlier jointly owned and possessed by the plaintiff. All the defendants and performa defendants, but after partition, defendants No. 1 to 3 are owners in possession of Khasra Nos. 859/1, 859/2 and 832/2 respectively. Predecessor-in-interest of the defendants No. 1 and 2 had not only purchased the lands mentioned in the plaint, but defendants No. 1 and 2 are also owners of the land in other khatas in Mohal Kotli. It was specifically stated that predecessor-in-interest of the plaintiff was having land more

¶22

5

¶23

than that of his share to which he was entitled. Defendants No. 1 and 2 filed partition proceedings before the Court of Assistant Collector, 1^st Grade, Baijnath on 20.1.2003, titled as Kaushalya Devi and ors. Vs. Rajinder Paul and ors. The predecessor-in-interest of the plaintiff, namely, Rajinder Paul was having knowledge regarding the same and he was proceeded ex-parte in the partition proceedings despite being duly served. Partition application No. 14/Teh./2003 was allowed on 16.08.2005 and defendants No. 1 to 3 were allotted Khasra Nos. 859/1, 859/2 and 832/2 respectively and instrument of partition was effected in that regard.

¶24

6 According to defendants No. 1 to 3, the plaintiff was very much having knowledge regarding decision of the said partition case and allotment of Khasra Nos. 859/1, 859/2 and 832/2 in favour of defendants No.1 to 3 in the partition case, therefore, subsequently, he preferred an appeal No. 2/07 against the order dated 16.08.2005 in the Court of S.D.O. (Civil), Baijnath, which came to be dismissed in default on 22.7.2009. The plaintiff was also having knowledge regarding warrant of possession, delivery of possession to defendants No. 1 to 3 on 20.10.2010 on the spot and mutation No. 826 to this effect having been attested and sanctioned on 22.11.2010 by the revenue authorities. Defendant No.3 was in possession and

¶25

6

¶26

having his house in the part of the suit land i.e. Khasra No. 832 after he purchased land from Kaushalya Devi, d/o Nihal Paul.

¶27

7 It was further averred that one Saran, s/o Lehnu is

¶28

tenant in Khata No.3, Khatauni No. 16, Khasra Kita 6 land measuring 0-23-00 hectares, situated at Mohal-Kotli vide jamabandi for the year 1991-92, but in Khata No.2, Khatauni Nos. 12 to 15, Khasra No. 12, measuring 1-44-87 hectares, situated at Mohal Kotli of the same year, defendants No. 1 and 2 are co-owners with plaintiff and other co-sharers, which is suit land. Total land mentioned in Khata No.139 is 01-39-73 hectares and the same is on account of mutation No. 360, dated 28.05.1998 of the partition got done by Upender Paul and others, in which Khasra No. 820/1 measuring 0-05-14 hectares has been allotted to them, which is evident from parcha jamabandi for the year 1991-92 of Khata No.2. There was no need to apply for the partition of Khata No. 3 of Jamabandi for the year 1991-92 and 2001-02 as the same is in the possession of the tenant Saran, son of Lehnu. It was also averred that the predecessor-in-interest of the plaintiff was having land more than that of his actual share and the revenue officials carved out the excess land from the possession of the plaintiff. The defendants No. 1 to 3 have acquired the share, to which they are entitled. All the averments, contrary to

¶29

7

¶30

the record, as raised in the plaint, were refuted by defendants No. 1 to 3. They prayed for dismissal of the suit filed by the plaintiff.

¶31

8 As regards proforma defendants No. 10, 11 and 12, they filed separate written statement, wherein they admitted claim of the plaintiff and prayed for decreeing the suit, as filed by the plaintiff.

¶32

9 Proforma defendant No.8 also filed written statement, wherein, he also admitted claim of the plaintiff and prayed for decreeing the suit, as filed by the plaintiff.

¶33

10 The learned trial court on 28.03.2012 framed the

¶34

following issues:-

¶35

Whether the plaintiff and proforma defendant No. 12 are joint owners in possession of the suit land, as alleged? OPP.

¶36

Whether mutation No. 826 dated 22.11.2010 attested and sanctioned in favour of defendants No. 1 to 3 is wrong, illegal and is not binding upon the plaintiff, as alleged? OPP.

¶37

Whether mutation No. 826 dated 22.11.2010 is attested and sanctioned on the basis of partition carried out fraudulently behind the back of the plaintiff in connivance with revenue officials which is not binding upon the plaintiff and proforma defendant No. 12 and is liable to be declared as null and void, as alleged ? OPP.

¶38

8

¶39

Whether the plaintiff is entitled for consequential relief of permanent injunction, as prayed for? OPP.

¶40

Whether the suit is not maintainable in the present form? OPD to 3.

¶41

Whether the plaintiff has no cause of action to file the present suit ? OPD 1 to 3.

¶42

Whether the plaintiff has no locus standi to file the present suit ? OPD 1 to 3.

¶43

Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPD 1 to 3.

¶44

Whether the suit is not properly valued for the purpose of court fee and jurisdiction ? OPD 1 to 3.

¶45

Relief.

¶46

11 The learned trial court directed the parties to adduce evidence in support of their contentions to corroborate their respective case and ultimately, the learned trial court vide its judgment and decree dated 31.07.2013 dismissed the suit of the plaintiff/appellant.

¶47

12 The plaintiff/appellant, feeling dissatisfied by the judgment and decree, dated 31.07.2013, as passed by the learned trial court, preferred an appeal before the learned first Appellate Court on 23.08.2013, which too came to be dismissed vide judgment and decree dated 30.09.2024.

¶48

9

¶49

13 Still feeling aggrieved by the aforesaid judgments and decrees, the plaintiff/appellant has preferred the present regular second appeal before this Court.

¶50

14 With consent of the learned counsel for the parties, the present appeal is finally heard on the following substantial question of law:-

¶51

Whether the learned Courts below have misread and mis-appreciated pleadings of the parties as also evidence on record, both oral as well as documentary and on account of such misappreciation of the pleadings as also evidence on record, findings of both the courts below are vitiated and deserve to be set aside?

¶52

15 It is contended by Mr. Sanjeev Kuthiala, learned Senior Advocate, assisted by Ms. Tamana Sharma, Advocate, appearing for the plaintiff/appellant that the impugned judgments and decrees, as passed by the learned Courts below, are erroneous, wrong and, thus, liable to be quashed and set aside. He has submitted that the learned Courts below have not rightly determined point in controversy and has failed to appreciate the dispute inter se the parties. He has further submitted that after accepting the instant appeal, the suit, as instituted by the plaintiff/appellant, may be decreed.

¶53

10

¶54

16 On the other hand, Mr. Viplav Sharma, learned Senior Advocate, assisted by Mr. Dalip Kumar, Advocate, appearing for respondents/defendants No. 1 and 2, has defended the impugned judgments and decrees, as passed by the learned Courts below. He has submitted that there are concurrent findings of fact, which do not call for any interference in the instant proceedings. He has further submitted that the suit, as filed by the plaintiff/appellant, is not maintainable since he has not approached the Court with clean hands and has misrepresented the facts, which have been rightly adjudicated by the learned Courts below.

¶55

17 I have heard the learned counsel for the parties and have perused the record carefully.

¶56

18 As observed above, the plaintiff instituted the suit before the learned trial court on the ground that the land bearing Khata No. 168, Khatauni Nos. 282 to 285, Khasra Nos. 864, 866, 867, 869, 857, 858, 859, 868, 1175/820, 832, 882, 883, Kita 12, measuring 1-39-73 hectares, situated at Mohal Kotli, Mauza Bir, Tehsil Baijnath, District Kangra, H.P. is jointly owned and possessed by him along with defendants No. 1 to 3 and proforma defendants No. 4 to 12. The predecessorin-interest of defendants No. 1 and 2 had purchased the land in Khata No. 4, specifically in Khasra Nos. 882, 832, 883 on

¶57

11

¶58

24.01.1974 after proper demarcation and since then, they were in possession. It is the case of the plaintiff that he is one of the co-sharers over the specific Khasra Nos. 857, 858, 859, 868 in the suit land as per the revenue record. The defendants No. 1 and 2 initiated the alleged partition proceedings with respect to the suit land, however the plaintiff was never associated by means of fraud, misrepresentation and without any notice to the plaintiff or his predecessor-in-interest. Defendants No. 1 to 3 succeeded in getting the land mutated in their favour at the back of the plaintiff. The defendants No. 1 and 2 cleverly and fraudulently filed the partition proceedings of Khata Nos. 2 and 3 of jamabandi for the year 1991-92, whereas defendant Nos. 1 and 2 did not apply for partition of the land, in which, Saran was recorded as tenant. The alleged partition and mutation to this effect is only a paper entry and the same is not binding on the rights of the plaintiff which is illegal, wrong, and as a result of fraud.

¶59

19 The precise contention, which has been raised by the learned Senior counsel for the appellant, is that the partition proceedings, which were initiated by defendants No. 1 and 2, are result of fraud and misrepresentation and no reliance can be placed on the same since the partition proceedings were effected at the back of the plaintiff and his

¶60

12

¶61

predecessor-in-interest that too without issuance of any notice to them. It is the case of the plaintiff that the entire partition process is a sham transaction as neither the plainitff or his predecessor-in-interest was associated in the proceedings nor an opportunity of being heard was given to anyone of them. Since the entire proceedings were effected at the back of the plaintiff, therefore, the same are not binding on rights, title and interest of the plaintiff or his predecessor-in- interest and the same is result of fraud.

¶62

20 On the other hand, learned senior counsel for respondents No. 1 and 2 has vehemently contended that the plaintiff has not approached the Court with clean hands and has suppressed the material facts not only from the trial court, but also from first appellate court as well as this Court. He has submitted that defendants No. 1 and 2 filed the partition proceedings before the Court of Assistant Collector, 1^st Grade, Baijnath on 20.1.2003, titled as Kaushalya Devi and ors. Vs. Rajinder Paul and ors. The predecessor-in-interest of the plaintiff, Rajinder Paul, was having knowledge regarding the said proceedings inasmuch as despite valid service, he did not put in appearance and was proceeded ex-parte in the partition proceedings. Partition application No. 14/Teh./2003 was allowed on 16.08.2005 and in pursuance to that,

¶63

13

¶64

defendants No. 1 to 3 were allotted Khasra Nos. 859/1, 859/2 and 832/2 respectively. Instrument of partition was also framed by the revenue authority in that regard.

¶65

21 It has been further contended by the learned senior counsel for respondents No. 1 and 2 that the matter does not rest here. The plaintiff was very much having the knowledge regarding decision of the partition case, therefore, he filed an appeal No. 2/2007 against the order of partition dated 16.8.2005 in the Court of S.D.O. (Civil), Baijnath, on 10.11.2006, however, the same came to be dismissed in default on 22.7.2009.

¶66

22 It is the case of respondents No.1 and 2 that the plaintiff was having express knowledge regarding the partition proceedings and allotment of Khasra Nos. 859/1, 859/2 and 832/2 in favour of defendants No.1 to 3 in the partition case. The plaintiff was also having knowledge regarding warrant of possession, delivery of possession to defendants No. 1 to 3 on 20.10.2010 on the spot and thereafter mutation to this effect having been attested and sanctioned on 22.11.2010 in their favour by the revenue authorities. Defendant No.3 was in possession and having his house over a part of the suit land i.e. Khasra No. 832 after he purchased the land from Kaushalya Devi, d/o Nihal Paul.

¶67

14

¶68

23 The main grievance of the plaintiff before the learned trial court, the first appellate court and this Court is that partition proceedings having been conducted by the revenue authorities at the back of plaintiff and his predecessor-ininterest are result of misrepresentation, fabrication and fraud.

¶69

24 It would be apt to first reproduce relevant provisions

¶70

of Order VI of CPC, which read as under:-

¶71

2. Pleading to state material facts and not evidence.—

¶72

(1) Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.

¶73

(2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph.

¶74

(3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.

¶75

4. Particulars to be given where necessary.—In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.

¶76

25 From the perusal of Order VI Rule 2 of CPC, it is specifically clear that every pleading shall contain and contain

¶77

15

¶78

only a statement in a concise form of all the material facts, on which the party pleading relies for his claim or defence, as the case may be. Order VI Rule 4 of CPC requires party to state specific particulars to support their claim of fraud and misrepresentation. Failure to do so leads to passing of adverse order. General allegation that fraud has been committed does not meet the legal requirement. The party, who alleges fraud, has the burden of proving its existence.

¶79

26 It would be clear from the perusal of the plaint, as filed by the plaintiff/appellant, the only ground, which has been taken in the plaint, is that the partition proceedings have been effected behind back of the plaintiff and his predecessor- ininterest. Neither they were heard in the matter nor any opportunity was given to them to contest the proceedings. No specific allegation pertaining to the fraud, mis-representation and fabrication has been leveled in the plaint and pleadings with respect to same are cryptic and vague and, thus, no reliance can be placed on the same.

¶80

27 It is well settled principle of law that in order to prove plea of fraud, specific material, pleading and evidence has to be placed on record and in the absence of doing so adverse inference has to be drawn against the party.

¶81

16

¶82

28 In Canara Bank vs. P Selathal, 2020 (13) SCC

¶83

143, the Hon’ble Supreme Court has held as under:-

¶84

11. Relying upon and following the decision of this Court in the case of O.C. Krishnan and others (supra), thereafter the Division Bench of the Madras High Court in the case of M/s Cambridge Solutions Limited (supra), has rejected the plaint in which the order passed by the DRT was challenged, in exercise of powers under Order 7 Rule 11 (d) of the CPC. It is required to be noted that in the said case also there were allegations of fraud in the plaint and considering the averments in the plaint, it was found that the allegations of fraud are illusory. It is observed by the Division Bench in the said decision that specific instances and acts of fraud with evidence have to be pleaded in the plaint. It is further observed that mere statements are not enough. It is further observed that it is not sufficient if just fraud is pleaded and there must be material to show that the fraud is committed.

¶85

10. Having considered the pleadings and the averments in the suits, more particularly the allegations of fraud, we find that the allegations of fraud are with respect to the partnership deed and there are no allegations at all with respect to mortgage created by the Guarantor – Shri Kallikutty and that too with respect to the deed of guarantee executed by the Guarantor. Much reliance is placed upon the judgment and order passed by the learned Magistrate holding the partners of the firm guilty. However, it is required to be noted that even in the said judgment passed by the learned Magistrate there is no reference to the deed of guarantee and/or the mortgage created by the Guarantor. Even the bank is not a party to the said proceedings. It is reported that against the

¶86

17

¶87

judgment and order passed by the learned Magistrate, further appeal is pending. Be that as it may, considering the pleadings/averments in the suits and the allegations of fraud, we are of the opinion that the allegations of fraud are illusory and only with a view to get out of the judgment and decree passed by the DRT. We are of the opinion that therefore the suits are vexatious and are filed with a mala fide intention to get out of the judgment and decree passed by the DRT.

¶88

29 In H. S. Goutham vs. Rama Murthy, 2021 (5) SCC

¶89

241 , the Hon’ble Supreme Court has held as under:

¶90

32. Before the learned Principal City Civil Judge, the judgment debtors led the evidence in support of their claim that the judgment and decree was obtained by fraud and mis-representation, which evidence was not led by them before the Executing Court when they submitted the objections and contended that the decree was obtained by fraud. That, thereafter, the learned Principal City Civil Judge submitted the report that the decree was obtained by fraud and on the basis of the report submitted by learned Principal City Civil Judge mainly, the High Court has set aside the judgment and decree by the impugned judgment and order. Thus, from the aforesaid it is crystal clear that all through-out there was a delay and negligence on the part of the judgment debtors in not initiating the appropriate proceedings at appropriate stage.

¶91

35. Now, so far as the procedure adopted by the High Court calling for the report from the learned Principal City Civil Judge on whether the decree was obtained by fraud

¶92

18

¶93

or not is concerned, at the outset, it is required to be noted that at the time when the High Court passed such an order, there was already an order passed by the learned Executing Court dated 03.03.1998 overruling the objections raised by the judgment debtors that the decree was obtained by fraud and mis-representation. As observed by the learned Executing Court in the order dated 03.03.1998, the judgment debtors except the averments that the decree was obtained by fraud, misrepresentation, neither any further submissions were made on that nor even the judgment debtors led any evidence in support of the same. Therefore, as such, learned Executing Court was justified in overruling the objection that the decree was obtained by fraud, misrepresentation etc.

¶94

36. As per the settled principle of law, when the fraud is alleged the same is required to be pleaded and established by leading evidence. Mere allegation that there was a fraud is not sufficient. Therefore, subsequent order passed by the High Court calling for the report from the learned Principal City Civil Judge on the question whether the decree was obtained by fraud or not, can be said to be giving an opportunity to the judgment debtors to fill in the lacuna. Therefore, the course adopted by the High Court calling for the report from the learned Principal City Civil Judge cannot be approved.

¶95

30 To the similar effect, the Apex Court in Electrosteel

¶96

steel Castings Limited vs. UV Asset Reconstruction Company Limited & ors., 2022 (2) SCC 573 has observed as under:

¶97

19

¶98

“7.2. However, it is required to be noted that except the words used "fraud"/"fraudulent" there are no specific particulars pleaded with respect to the "fraud". It appears that by a clever drafting and using the words "fraud"/"fraudulent" without any specific particulars with respect to the "fraud", the plaintiff-appellant herein intends to get out of the bar under e Section 34 of the SARFAESI Act and wants the suit to be maintainable. As per the settled proposition of law mere mentioning and using the word "fraud"/"fraudulent" is not sufficient to satisfy the test of "fraud". As per the settled proposition of law such a pleading/using the word "fraud"/"fraudulent" without any material particulars would not tantamount to pleading of "fraud

¶99

8. In Bishundeo Narain in para 22, it is observed and held as under: (SCC p. 454)

¶100

22. Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. g General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion. See Order 6 Rule 4, Civil Procedure Code.

¶101

8.1. Similar view has been expressed in Ladli Parshad Jaiswal and after considering the decision of the Privy Council in Bharat Dharma Syndicate Ltd. v. Harish Chandra, it is held that a litigant who prefers allegation of fraud or other improper conduct must place on record precise and specific details b of these charges. Even as per Order VI Rule 4 in all cases in which the party

¶102

20

¶103

pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, particulars shall be stated in the pleading. Similarly in K.C. Sharma & Co. it is held that "fraud" has to be pleaded with necessary particulars. In Ram Singh, it is observed and held by this Court that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances by which the suit is barred by law of limitation.

¶104

8.2. In T. Arivandandam v. T.V. Satyapal¹¹, it is observed and held in para 5 as under: (SCC p. 470)

¶105

5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful-not formalreading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10 CPC. An activist Judge is the answer to irresponsible law suits.

¶106

31 The principle, as enunciated by exposition of law, as laid down by the Hon’ble Apex Court, clearly demonstrates that it is cardinal principle of law that fraud has to be pleaded and proved. It is law of land that fraud unravels everything. The

¶107

21

¶108

Court is careful not to find fraud unless it is distinctly pleaded and proved, but once it is proved, it vitiates the judgments contracts and all transactions whatsoever. From the multiple decisions of Hon’ble Supreme Court on ‘fraud’, what follows is that fraud and justice cannot dwell together, the legislature never intends to guard fraud, the question of limitation to exercise power does not arise, if fraud is proved, and even finality of litigation cannot be pressed into service to absurd limits when a fraud is unravelled.

¶109

32 The plaintiff in order to substantiate his case entered the witness box as PW1. In his deposition, he deposed that defendants No. 1 to 3 instituted partition proceedings against his father before the revenue authorities and in the same, his father did not receive any notice. He further stated that no notice or information with respect to the partition case was received either by him or his predecessor-in-interest. In his cross-examination, he admitted that his father expired on 2.6.2006, i.e. after passing of the order of partition by Assistant Collector, 1^st Grade, Baijnath. He admitted that the partition case was instituted on 20.1.2003 and the final order was passed by the revenue officer on 16.8.2005. When the partition was conducted, his father was alive. He denied that he was aware about pendency of the partition proceedings. There is

¶110

22

¶111

categorical admission on the part of the plaintiff that in order to assail the partition proceedings, he had preferred an appeal in the Court of SDO (Civil), Baijnath. He admitted that the said appeal was preferred by him on 8.11.2006. He further admitted that on account of non-appearance, the appeal, as instituted by him before the SDO (Civil), Baijnath was dismissed in default on 22.7.2009.

¶112

33 In order to rebut the case of plaintiff, defendant No.1 Kaushalya Devi, entered the witness-box as DW2 and stated in her testimony that the suit land is situated in Mohal Kotli, which is about more than 5 kanals. Earlier the suit land was joint amongst the parties. She along with her sister namely Chander Kanta got the land by virtue of the inheritance from her father, which is about more than 5 kanals. She stated that her father purchased the land from Prem Pal. This land was duly partitioned by instituting the application in January 2003 before the competent authority. She stated that the partition proceedings were instituted by her and defendant No.2 as they were having less land on the spot. The application for partition is Ext. DW2/A and the same is duly signed by her and her sister Chander Kanta at points A and B. She stated that the factum of partition was very much in the knowledge of father of the plainitff and in that regard, summon Ext. DW2/B was also

¶113

23

¶114

served upon him. She stated that the plaintiff and his father and others on 20.3.2003 remained present in the Tehsil Office and thereafter, they did not turn up. Some of the parties used to come and some of them did not turn up. Thereafter, they were proceeded ex-parte. She further stated that at the time of partition, father of the plaintiff was alive. After the order in the partition proceedings, an application for delivery of the possession was filed, however the same could not be done as the present plaintiff instituted an appeal before the SDO (Civil), Baijnath. Thereafter, the appeal, which was filed by the plaintiff, was dismissed in default on 22.7.2009 and after the dismissal of the same, they filed an application for warrant of possession in 2010. Thereafter, they got the possession on the spot. When the possession was handed over to the defendants, Surinder Kumar was also present on the spot. She stated that defendant No.3 is in possession of Khasra No. 832/2 and he has constructed a house over the same and the possession of the said defendant is prior to the partition proceedings. The partition effected between the parties is legally valid and correct and the mutation has been attested in favour of the defendants No. 1 to 3. She stated that the plaintiff and his predecessor-ininterest were well aware of partition proceedings that is why they preferred an appeal before the SDO Civil. She deposed

¶115

24

¶116

that the instant suit has been filed by the plainitff just to harass them so that he can take forcible possession of the land which has been allotted to them in the partition proceedings. In her cross-examination, the plaintiff could not extract anything favourable from this witness.

¶117

34 Defendants No. 1 to 3 examined Tilak Raj, Reader to SDM Office Baijnath, who while appearing in the witness box as DW1, stated in his testimony that he has brought the summoned record. He testified that the appeal, which was filed against the order of partition dated 16.8.2005, certified copy whereof is Ext. DW1/A and the same is correct as per their record. He stated that the appeal Ext. DW1/A was instituted on 9.11.2006 by Jitender Paul, the present plaintiff. He deposed that Zimini orders of the appeal, Ext. DW1/B are correct as per the record. He further stated that the aforesaid appeal on account of non-appearance of the appellant/counsel was dismissed in default on 22.4.2009.

¶118

35 DW3, Jeet Kumar, deposed that he has seen suit land, which is situated at Mohal Kotli and defendants No. 1 and 2 are having 5 kanals of land, which is in their possession. Earlier the suit land was joint amongst the parties, however defendants No. 1 and 2 filed the partition application in the year 2003 and thereafter, the same is in their possession. He

¶119

25

¶120

stated that the suit has been instituted by the plaintiff just to pressurize and harass defendants No. 1 to 3. He was thoroughly cross-examined by the plaintiff, but nothing could be extracted from this witness.

¶121

36 It would be noticed that though the entire edifice of the case, as set up by the plaintiff/appellant, is that the partition proceedings were initiated by defendants No. 1 and 2 at the back of the plaintiff or his predecessor-in-interest and the entire partition process is a sham transaction as neither plaintiff nor his predecessor-in- interest was heard in the matter and the entire proceedings were conducted at their back, however, as observed above, in view of the categorical admission as made by the plaintiff while appearing in the witness box as PW1 that on 09.11.2006 he had instituted an appeal before the SDO (Civil), Baijnath against the partition order, dated 16.08.2005 as passed by the Assistant Collector, 1^st Grade, Baijnath and the same was dismissed in default, it is crystal clear that the case as set up by the plaintiff is based on the falsehood and stands belied. Though a suggestion was put to defendant No.3 by the plaintiff with respect to the fact that the plaintiff is in possession of Khasra No. 832, 882 and 883, however, the same is in contrast to his own assertion that

¶122

26

¶123

defendants No.1 to 3 are in possession of the aforesaid Khasra numbers.

¶124

37 Defendants No. 1 to 3 in order to falsify the case of the plaintiff, have placed on record copy of the application for partition of the suit land, Ext. DW2/A, having been filed by Kaushalya Devi, Chander Kanta against Rajinder Paul, s/o Sh. Prithi Pal, predecessor-in-interest of the plaintiff, Raj Rani, Brinder Pal, Kulvinder Pal, Subhadra Devi, Kanta Devi, Ajudhya Devi, Gujru Ram, Sarju Ram and Surinder Pal in the Court of Assistant Collector, 1^st Grade, Baijnath, in the year 2003. The said application was duly served upon the defendants including predecessor-in-interest of the plaintiff, namely, Rajinder Paul, however predecessor-in-interest of the plaintiff did not put in appearance and was accordingly proceeded against ex parte by the Assistant Collector, 1^st Grade and vide its order dated 16.8.2005 allowed the application for partition.

¶125

38 Defendants No. 1 to 3 have also placed on record, copy of the grounds of appeal, Ext. DW1/A, which was preferred by the present plaintiff Jitender Paul in the Court of SDO (Civil), Baijnath on 9.11.2006. Perusal of the aforesaid grounds of appeal reveal that a stand was taken by the present appellant/plaintiff that order, which was passed by the

¶126

27

¶127

Assistant Collector, 1^st Grade came to his knowledge only on 6.11.2006 when he was asked by the Halqa Patwari to appear before him for the implementation of partition order through his servant as he was out of station and thereafter after coming to his native village, he immediately applied for copy of the partition order and after obtaining the same, preferred the aforesaid appeal. The said appeal continued till 22.7.2009, on which date, when none appeared for the appellant, the appeal as preferred by them was dismissed in default and the case file, after due completion, was consigned to General Record Room. Copy of order dated 22.7.2009 has been placed on record as Ext. DW1/C.

¶128

39 The entry of mutation No. 826, dated 22.11.2010 which was effected pursuant to the partition order, is being reflected in the revenue record i.e. Ext. P-1, which clearly reveals that pursuant to order of partition, possession of the suit land was duly handed over to defendants No.1 to 3 on the spot.

¶129

40 It is a matter of record and even otherwise, as has been fairly conceded by the learned counsel for the parties, that after dismissal of the appeal against the partition order, dated 16.08.2005 in default, no action was taken by the plaintiff in

¶130

order to revive the said proceedings or to challenge the orders

¶131

28

¶132

as passed by the revenue authorities in the higher/superior authority, thus, the same have become final.

¶133

41 The documentary evidence, having been placed and proved on record by defendants No. 1 to 3, also clearly belies and shatters the claim of the plaintiff/appellant, which is primarily based on the ground that a fraud has been committed by the revenue authorities as neither the plainitff nor his predecessor-in-interest was involved or joined in the partition proceedings and the entire proceedings have been conducted at their back and establishes the defence as taken by defendants No. 1 to 3 that the factum of institution of partition proceedings was very much in the knowledge of the plaintiff, who is appellant in the present case and his predecessor-in-interest, because he himself preferred an appeal against the order as passed by the Assistant Collector, 1^st Grade, dated 16.8.2005 in the Court of SDO (Civil) Baijnath in the year 2006, which remained pending for about more than 3 years and finally when none appeared on behalf of the appellant on 22.7.2009, the SDO (Civil), Baijnath, had no other option, but to dismiss the appeal in default.

¶134

42 It has been rightly pointed by the learned senior counsel for respondents No. 1 and 2 that the instant proceedings have been initiated just to drag defendants No. 1 to

¶135

29

¶136

3 in an uncalled for litigation and to deprive them from the fruits of the partition proceedings which took place about more than 21 years ago.

¶137

43 The oral evidence in conjunction with the documentary evidence as placed on record leaves no iota of doubt that the partition proceedings, which were initiated by the defendants, were very much in the knowledge of the plaintiff and his predecessor-in-interest as when the matter was pending before the Assistant Collector, 1^st Grade, Baijnath, despite valid service, father of the plaintiff did not appear before the revenue authority and consequently, he along with other parties were proceeded ex parte. The grounds of appeal which was instituted by the present plaintiff falsify the case set up before this Court that the entire proceedings were initiated at the back of the plaintiff and his predecessor in interest. The plaintiff duly preferred an appeal before the SDO (Civil) Baijnath against the order of partition dated 16.08.2005 therefore, it does not lie in the mouth of the plaintiff that everything was got done at their back and they were not aware about those proceedings.

¶138

44 As has been observed earlier, neither the order of dismissal in default was recalled nor against the said order, any appeal was instituted by the plaintiff before the higher

¶139

30

¶140

authority. After availing the remedy before the appropriate revenue authorities, now the plaintiff cannot be permitted to drag the defendants No. 1 to 3 in litigation for infinity. The partition order was passed in 2005 and despite passing of more than 21 years, the plaintiff has been successful in dragging the defendants No.1 to 3 in uncalled for litigation. It is, thus, clear that everything was within the knowledge of the plaintiff. The allegations of fraud, mis-representation and fabrication, which have been tried to be leveled in the present proceedings, are totally unsubstantiated or uncorroborated and have not been proved to the hilt of the facts of the case.

¶141

45 The learned courts below have rightly and concurrently decided the controversy after taking into consideration the oral as well as documentary evidence placed on record. There is no infirmity or illegality in the same and the courts below have rightly dismissed the suit which was affirmed by the first appellate court.

¶142

46 The first appellate court has rightly rejected the application which was filed by the plaintiff under provisions of Order 41 Rule 27 as the plaintiff failed to establish and prove that why the documents as intended to be placed on record were not produced earlier by the present appellant during the trial. The plaintiff has not been able to establish his case

¶143

31

¶144

within corners of parameters as laid down in the provisions of order 41 Rule 27 CPC.

¶145

47 As a matter of fact, the plaintiff intended to place on record copies of file of partition case No. 14/Teh./03, titled as Kaushal Devi vs Rajinder Pal, decided on 16.8.2005 by the Assistant Collector, 1^st Grade, Baijnath, copy of mutation No. 360, dated 28.5.1998, 402, copy of tatima and sale deed.

¶146

48 The plaintiff has failed to establish that notwithstanding the exercise of due diligence, the evidence which he intended to place on record, was not within his knowledge and the same could not be produced by him at the time when the decree in appeal was passed.

¶147

49 The Hon’ble Apex Court has repeatedly held that the parties are not entitled to produce additional evidence at an appellate stage, unless it is shown that inspite of due diligence, they could not produce the same and such documents are required to enable the Court to pronounce the proper judgment. As rightly held by the learned first appellate court that the documents as sought to be placed on record were prepared in favour of the defendants during the trial, therefore, the plaintiff was fully aware of the same and existence of such documents was within his knowledge. The entire case of the plainitff hinges around the partition proceedings and it cannot be believed that

¶148

32

¶149

the entire partition proceedings file, which he intends to place on record by means of order 41 Rule 27 was not within his knowledge. As plaintiff himself preferred an appeal before the Court SDO Civil, therefore, it cannot be inferred that nothing was within his knowledge. The application as filed is an afterthought and it does not meet requirement as envisaged under Order 41 Rule 27.

¶150

50 T he Hon’ble Supreme Court in catena of judgments has held that the first appellate is the final court of the fact. No doubt, second appellate court exercising the power under Section 100 CPC can interference with the findings of fact on limited grounds such as - (a) where the finding is based on inadmissible evidence; (b) where it is in ignorance of the relevant admissible evidence; (c) where it is based on misreading of evidence; (d) where it is perverse, but that is not case in hand.

¶151

51 The Hon’ble Supreme Court while dealing with scope of interference under Section 100 in Hero Vinoth (minor) vs. Seshammal, (2006) 5 SCC 545 has held as under:

¶152

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

¶153

33

¶154

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 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 :

¶155

"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 difficulty 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

¶156

34

¶157

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

¶158

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 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.

¶159

20. to 22 xx xx xx xx

¶160

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

¶161

35

¶162

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 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.”

¶163

52 The Hon’ble Supreme Court in Annamalai vs.

¶164

Vasanthi, 2025 INSC 1267 , has held as follows:-

¶165

“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.

¶166

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 plaintiff-appellant and the circumstance that signature(s)/thumbmark of D-1 and D-2 were not disputed, though claimed as one obtained on a blank

¶167

36

¶168

paper. The reasoning of the first appellate court in paragraph 29 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 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 evidence available on record as also the circumstance that signature(s)/thumbmark(s) appearing on the document (Exb.A-2) 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.

¶169

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

¶170

37

¶171

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

¶172

53 As observed above, the Hon’ble Apex Court has repeatedly held that the scope of interference under Section 100 CPC is limited and the interference will be in those cases where the judgments are perverse and based on no evidence. On perusal of the impugned judgments and decrees, this court is of the opinion that the same are valid, legal and sustainable in the eyes of law and there is no infirmity and illegality in the same. and no interference of any kind is required in the same. The substantial question of law is answered accordingly.

¶173

54 In view of aforesaid discussions and for the reasons stated hereinabove, there is no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.

¶174

(Romesh Verma)

¶175

Judge

¶176

15^th June, 2026 (pankaj)

Jatinder Paul v. Kaushalaya Devi and Ors.

Case brief

What is this about?

What did the court decide?

Jatinder Paul v. Kaushalaya Devi and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Daya Ram Vs Ram Krishan

Mamta Dhiman Vs State of Hp and Others

Balraj Kaundal Vs the State of Hp and Others

Babita Kumari Vs Rajinder Prasad

Jagdish Chand and Ors. Vs UOI and Others

The State of Himachal Pradesh through the District Collector, Bilaspur H.P. and Others Vs Ramji (since deceased) through his LRs Sh. Hans Raj and others