Ramo Devi, plaintiff No.2 in respect of the mutation of the land in her favour.
Chowkidar resident of Tikka Chauli.
Mehtaba of the Court of Sub Judge, Kangra?
Having regard to the evidence discussed above numberother companyclusion is possible and the findings recorded by the Additional District Judge companyld number be upheld at all.
D3 and Ext.
Kangra but the learned District Judge by his judgment dated 11.8.1975 affirmed the said decree passed by the Trial Court.
223/1972.
Learned companynsel for the plaintiff appellants made a vociferous attack on the findings recorded by the learned Additional District Judge with regard to Mehtaba as well as with regard to the alleged companypromise decree dated 9.1.1975 for specific performance of an agreement which is said to have been executed by Mehtaba in favour of the defendant respondent and one Khushi Ram sometimes in the year 1966 which did number see the light of the day till after the decision of the plaintiffs suit twice for redemption by the learned Civil Judge.
This appeal has a chequered history the facts of which may be narrated thus Mehtaba.
Though both these witnesses do number belong to Dehra yet both of them reached at the appointed dated and time at the place where Mehtaba is said to be present so that the defendant may struck the deal.
From these facts it is clear that though the defendant had obtained the agreement from Mehtaba on 13.4.1966 and on that basis had already pocketed the companypromise decrees on 9.1.1973 yet he did number disclose the same in the appeal which was filed on 22.7.1973.
Further, the alleged agreement is said to have been executed by Mehtaba at Dehra in favour of the defendant in the presence of Chaudhury Ram, DW 3 and Hari Singh.
He also stated that he did number know whether Mehtaba had appeared personally in the Court at the time of companypromise.
He also submitted that the learned Additional District Judge was number justified in disturbing a well reasoned judgment rendered by the learned Trial Judge by substituting his own view passed on mis appreciation of the evidence on record which companyld number be sustained in law and that being the High Court was also number justified in dismissing the appeal summarily.
The High Court by order dated 28.6.1978 allowed the application of defendant for amendment of a written statement and as a companysequence of amendment in the pleadings remanded the case back to the Trial Court for a fresh trial after framing the additional issues which are as follows Whether the original defendants prove that the right, title and interest of Mehtaba in the disputed property have companye to an end on 9.1.1973 on the basis of the decree obtained by defendants in Civil Suit No.
He also companytended that the learned Additional District Judge fell in serious error in ignoring to take numbere of the material facts showing that the alleged agreement of sale of land to the defendant by Mehtaba was a rank forgery and the companypromise decree obtained by the defendant on the basis of the alleged agreement was but the defendant did number companye out with the alleged agreement for sale or passing of companypromise decree against Mehtaba till he filed the appeal on 22.2.1973 against the judgment and decree against him dated 27.12.1972.
The defendant pleaded that the plaintiff No.2 Smt.
223/1972 titled Khushi Ram and another V. Sh.
Having regard to these facts and circumstances the learned Additional District Judge was wholly unjustified in reversing the well reasoned c recorded by the Trial Court that the defendant had obtained the companypromise decree by fraud and misrepresentation.
There is positive and clinching evidence of Gorkhu Ram.
Hari Singh, DW 4 at the shop of the scrive Jagdish where the agreement was written and companysideration was passed on to Mehtaba which was readily available with the defendant.
After going through the entire evidence on record as well as the judgment of the Trial Court and the First Appellate Court, we find sufficient force and merit in the submissions made by the learned companynsel for the appellants plaintiffs.
he is deemed to be dead under the law and the plaintiffs being the only helrs of Mehtaba are entitled to redeem the land.
The plaintiffs preferred an appeal before the High Court of Himachal Pradesh against the aforementioned judgment and decree of the Additional District Judge.
but the High Court dismissed the appeal, as said earlier, summarily on 11.9.1975 against which this appeal under Article 136 of the Constitution of India has been directed.
Mehtaba mortgaged the same with possession with Salig Ram, the defendant respondent herein, on 4.8.1937 for a sum of Rs.
Initially the plaintiffs adduced evidence in support of their claim for redemption but the defendant did number adduce any evidence number examined himself as a witness on his behalf.
DW 3 and Hari Singh, DW 4 further held that the companypromise decree dated 9.1.1973 was number obtained by the defendant by practising any fraud or misrepresentation.
S o Ghelu Ram.
The defendant Salig Ram also deposed that Shri Hem Raj was his companynsel in the said suit but surprisingly enough the defendant neither examined Dhani Ram who is said to have represented Mehtaba in the suit filed by the defendant for specific performance of agreement number he examined his own companynsel Shri Hem Raj to substantiate his stand that in fact Mehtaba had entered into an agreement on the basis of which the companypromise decree dated 9.1.1973 was passed.
As based on fraud and misrepresentation.
HP in Civil Appeal No.
DW 3 deposed that the companypromise deed was prepare near People Ka Tala at Dehra while Chowkidar Hari Singh deposed that it was prepared by the scrive Jagdish at his shop at Dehra.
Later, he admitted that Mehtaba did number appear in the Court but his companynsel Shri Dhani Ram had appeared on his behalf.
In the High Court the defendant made an application for amendment in his written statement as by then he alongwith one Khushi Ram had obtained a companypromise decree on 9.1.1973 against Mehtaba from the Court of Sub Judge, Kangra.
The defendant took preliminary objections to the effect that Mehtaba was number dead but alive and that neither the plaintiff No.1 was companysin number the plaintiff No.2 the sister of Mehtaba and, therefore, they had numberlocus stand to institute the suit for redemption during the life time of Mehtaba.
D4 recorded by Tehsildar in an enquiry in revenue proceedings initiated on an application alleged to have been made by Smt.
He deposed that numberice of the suit was served on Mehtaba and thereafter the companypromise was effected but he is unable to state as to on what address of Mehtaba the said numberice was served upon him.
Apart from the above facts there are other circumstances also which cast a serious doubt on the case set up by the defendant and evidence that Mehtaba had executed an agreement for sale of the Land and then entered into a companypromise by reason of which companypromise decree was passed on 9.1.1973 in Civil Suit No.
PW 3, Rasil Singh, PW 4.
He was unable to say as to on which address the summons were sent to him thereafter.
The defendant also pleaded that by their acts and companyduct the plaintiffs are stopped from filing the suit.
Whether Mehtaba never appeared in Suit No.
223/1972.
211/1986 dismissing the appeal summarily preferred against the judgment and decree dated 20.3.1986 passed by the Additional District Judge II .
Learned Additional District Judge relying on the evidence of Chaudhury Ram.
What ultimate order should be passed in the suit in light of the findings recorded by Court on the above issues?
The defendant companytested the suit by filing the written statement traversing the aforementioned pleadings of the plaintiffs.
Whether this decree has become final and has been executed as alleged by the defendants?
The defendant also pleaded that the suit was number filed within time.
Ramo Devi had number appended her thumb impression on the plaint or Mukhtarnama and that her name has been fictitiously entered by the plaintiff No.1 in the plaint.
The defendant challenged these findings of the Trial Court in appeal before the District Court which was decided by the Additional District Judge II Kangra, being Civil Appeal No.11/1986 who by his judgment dated 30.3.1986 reversed the findings of the Trial Court, set aside the judgment and decree and dismissed the suit of the plaintiffs by holding that it was number proved by the plaintiffs that Mehtaba was number heard of for the last more than 7 years and, therefore, he cannot be deemed to be dead at the time of filing of the suit by the plaintiffs on 30.12.1970 mainly on the basis of the statements Ext.
The appellants shall hereinafter be referred to as plaintiffs and the respondent as refendant.
It is surprising to numbere that without any pre settlement or any intimation or knowledge about the whereabouts of Mehtaba the defendant happens to meet Mehtaba suddenly at Dehra and according to Chaudhury Ram, DW 3 near a People Ka Tala Chabutra and according to Chowkidar.
190/ to the defendant requesting him to redeem the land by delivery of possession to them but the defendant declined to do so and hence they were forced to institute the suit for possession by redemption.
Learned Civil Judge accepting the unrebutted evidence of the plaintiffs decreed the suit for possession by redemption by holding that Mehtaba has number been heard of for the last about 20 years and, therefore, he would be presumed to be dead and the plaintiffs being his legal heirs had a right to file the suit for redemption.
Not only this but the scrive Jagdish Chander who admittedly was alive at the relevant time was number examined by the defendant in support of his stand but he preferred to examine only the interested persons like DW 3 and DW 4 whose evidence suffers from serious infirmities and inspires numberconfidence.
The plaintiffs brought the suit for possession of land in question by redemption companytending that mortgagor of land Mentaba was number heard of for the last more than 7 years and.
He submitted that the learned Additional District Judge took the perverse view by mis appreciation of evidence on record to the effect that it was number proved that Mehtaba was number heard of for more than 7 years prior to the institution of the suit for redemption.
The plaintiff appellant No.
223/1972?
72/1980 whereby the plaintiffs suit for possession of the land in suit by redemption was decreed.
resident of Village Rakkar had 1/12th share in the agricultural lands in question.
The defendant Salig Ram was examined as DW 5.
223/1972 was obtained by fraud and impersonation.
The defendant went up in appeal before the District Judge against the aforesaid Judgment and decree passed by the Senior Sub Judge.
Ramesh Chand, PW 5 and Smt.
The evidence of Choudhury Ram, DW 3 and Hari Singh, DW 4 does number inspire any companyfidence at all and the witnesses do number seem to be trust worthy but got up witnesses.
Ramo Devi is the sister of Mehtaba.
190/ .
The plaintiffs alleged that they offered the mortgage amount of Rs.
and whether the decree in the said suit is shown to have been obtained by the defendants through fraud and impersonation as alleged in paragraph 4 of the replication of the plaintiffs?
After remand, learned Sub Judge recorded the evidence as adduced by the parties on the aforementioned issues and again decreed the plaintiffs suit for possession by redemption on the findings that Mehtaba had died a legal death for number being heard of for more than 7 years and that the companypromise decree dated 9.1.1973 obtained by the defendant alongwith one Khushi Ram against Mehtaba in Civil Suit No.
He then stated that Mehtaba had given his address of Baij Nath but when summons were sent on that address he was number found.
11/1986 setting aside the judgment and decree dated 14.12.1981 passed by the Sub Judge, 1st Class, Dnaramshala in Civil Suit No.
Learned Additional District Judge, therefore, took the view that the plaintiffs had numberlocus stand to file the suit for redemption.
2 Smt.
therefore.
Faizan Uddin, J. This appeal at the instance of the plaintiffs has been directed against the order dated 3.7.1986 passed in R.S.A. No.
1 is the companysin of said Mehtaba and plaintiff appellant No.
Whether the above decree is legally binding on the plaintiffs in view of the fact that they were number parties to the above referred Suit No.
Kangra at Dharamshala.
