Keli Devi and Others vs Kanhaiyalal and Others

Arun Bhansali, J.�This appeal is directed against the judgment and decree dated 30.5.2007 passed by the Additional District Judge, Deedwana, whereby the appeal filed by the appellant-plaintiff against the judgment and decree dated 13.3.2001 passed by the Civil Judge (Sr. Div.), Deedwana has been dismissed.

The facts in brief may be noticed thus : Ramnath and Pannalal S/o Ramnath filed a suit for declaration and specific performance of contract on 22.4.1974 with the averments that the land ad measuring 17 Bigha 15 Biswa in Khasara No. 154 and 4 Biswa in Khasara No. 153 situated at Rohida Bera Ka Jav (''suit property'') belonged to one Keshar Kanwar and Sugan Singh. After death of Keshar Kanwar, widow of his son Bhanwar Singh, Smt. Dakh Kanwar (respondent No. 3) succeeded, who alongwith Sugan Singh sold the said property by way of ''KACCHI LIKHA PADHI'' (informal agreement) to the plaintiff-Ramnath and defendant-Kanhaiyalal and since then the same remained in their cultivatory possession; Ramnath and Kanhaiyalal partitioned the movable and immovable properties and the suit property came in the share of the plaintiff, out of which Sugan Singh executed a registered sale deed in favour of Ramnath''s son Pannalal (plaintiff No. 2) and as the land was not mutated in the name of Smt. Dakh Kanwar, the same could not be registered in the name of the plaintiff, at that time, however, the same remained in possession of the plaintiff and continuous to be so; subsequent thereto with a view to harm the plaintiff, defendant - Kanhaiyalal got the sale deed of the half portion executed in favour of his minor son Nandkishore on 30.12.1973 from Smt. Dakh Kanwar, regarding which she had not right; it was claimed that the said ''KACCHI LIKHA PADHI'' was in possession of defendant-Kanhaiyalal; plaintiff was in possession of the suit property as owner as the same came in his share by way of partition deed dated 19.3.1971 and defendant-Kanhaiyalal and Nandkishore have no right; it was also claimed that as Smt. Dakh Kanwar did not give prior notice to the plaintiff, the same was contrary to the Rajasthan Pre-emption Act. It was prayed that the sale deed dated 30.10.1973 in favour of the defendant-Nandkishore be declared void, decree for specific performance be granted regarding sale of the said land in favour of the plaintiff and in the alternative, it was prayed that under pre-emption law, the plaintiff was entitled to get the sale executed in his favour.

A written statement was filed by Kanhaiyalal and Nandkishore and it was admitted that the suit property belonged to Keshar Kanwar and Sugan Singh. It was denied that the said property was sold by way of ''KACCHI LIKHA PADHI''; it was claimed that the said land was taken by plaintiff-Ramnath and defendant-Kanhaiyalal as ''Sikhmi Kastkar'', regarding which the agreement is with plaintiff-Ramnath. The partition between the parties was admitted; it was claimed that as on 19.3.1971, the suit property was not in their khatedari, the same could not be partitioned, the plaintiff has trespassed on the land belonging to Nandkishore; the sale in favour of Nandkishore is valid; the suit was liable to be dismissed.

Smt. Dakh Kanwar filed a separate written statement and supported the other two defendants, it was denied that the sale executed by her was illegal or fraudulent; she was not duped.

Based on the averments of the parties, the trial court framed 09 issues. On behalf of the plaintiff, 05 witnesses were examined and on behalf of the defendants, 06 witnesses were examined and several documents were exhibited. The trial court initially dismissed the suit on 8.2.1977, against which appeal was filed and during the pendency of the appeal, an application seeking amendment in the plaint was filed, which was accepted by the appellate court and by the judgment dated 25.2.1997, the suit was remanded back to the trial court to provide opportunity to the defendant to file amended written statement and thereafter proceed. The amended plaint was filed, to which amended written statement was not filed. Defendant No. 3 - Smt. Dakh Kanwar thereafter did not appear and ex-parte proceedings were drawn against her. Both the parties did not lead further evidence. Only the Issue No. 1 was amended and sum of Rs. 1,600/- regarding the consideration was indicated.

After hearing the parties, the trial court again dismissed the suit. The trial court came to the conclusion that the claim of the plaintiff was that the suit property was sold by Sugan Singh and Smt. Dakh Kanwar, however, in view of the provisions of Section 54 of the Transfer of Property Act, 1882, the same could only take place by way of a registered document, no document was produced to prove the said sale and as no steps were taken for production of secondary evidence, the oral evidence was not admissible and in absence of the document, the plaintiff failed to prove that the suit property was sold by Smt. Dakh Kanwar before 30.12.1973 to plaintiff-Ramnath and defendant-Kanhaiyalal for a sum of Rs. 1,600/-; as no transfer, as claimed by the plaintiff, had taken place, it cannot be said that Smt. Dakh Kanwar had no right to sale the land in dispute; as the property was not owned by the parties on the date of partition, the same could not be partitioned. However, Kanhaiyalal had removed his share as both were in possession at the relevant time, as no agreement was proved, there was no question of specific performance of the same, no right of pre-emption exist in favour of the plaintiff, in-sufficient court fee was paid, there was mis-joinder of parties and mis-joinder of cause of action and ultimately, dismissed the suit.

Learned first appellate court after hearing the parties upheld the finding recorded by the trial court and dismissed the first appeal.

It was submitted by learned counsel for the appellant that both the courts below feel in error in not construing the case of the plaintiff in the proper perspective and in ignoring the material documents on record and therefore, the findings in the judgments impugned are vitiated, the same deserve to be set-aside.

It was submitted that Exhibits-10 and 11 specifically have not been taken into consideration wherein the existence of documents relating to sale and partition between the parties are clearly evident and merely because the original agreement executed by Smt. Dakh Kanwar in favour of the plaintiff was not available on record, it cannot be said that the existence of document and/or agreement between the parties was not proved and consequently the entire judgment stands vitiated.

I have considered the submissions made by learned counsel for the appellant.

It is clear from the record that the suit was filed by the plaintiff-appellant seeking specific performance of the agreement said to have been executed by Smt. Dakh Kanwar in favour of plaintiff-Ramswaroop and defendant-Kanhaiyalal, the property having been partitioned and the same coming to his share and cancellation of sale deed executed by Smt. Dakh Kanwar in favour of Nandkishore on account of his prior agreement coupled with partition.

A specific averment was made in the plaint that the agreement was in the custody of defendant Kanhaiyalal. However, during the entire proceedings before the trial court, which remained pending from the year 1974 to 1997 including a short visit to the first appellate court after dismissal of the suit by the trial court and thereafter, the same was remanded by the first appellate court, no effort whatsoever was made by the appellant to get the said document produced from the defendant.

The contention that as the said document was against the defendant, he would not have produced the same, cannot absolve the appellant for at least making an effort in this regard and to take steps for getting the same produced. Merely speculating as to what would happened if the steps were taken in this regard without actual taking steps in this regard, cannot help and/or advance the cause of the appellant. If despite order, the defendant would not have produced the said document, adverse inference could have been drawn against him. However, as no effort whatsoever was made in this regard, both the courts below were justified in drawing adverse inference against the plaintiff-appellant and rejecting the suit and the appeal on account of their coming to the conclusion that no document and/or transaction as claimed by the plaintiff exists.

So far as the contents of Exhibits-10 & 11 are concerned, they are not sufficient to prove existence of any agreement of sale by Smt. Dakh Kanwar and the right of the parties to thereafter partitioned the same. Merely based on the contents of documents Exhibits 10 & 11, the reliefs claimed by the plaintiff regarding specific performance of contract and setting aside of sale deed in favour of Nandkishore could not have been granted by the courts below. The findings recorded by the courts below cannot be said to be perverse for any reason including on the basis of submissions made by learned counsel for the appellant.

The findings recorded by the courts below are essentially findings of fact and no substantial question of law arise for consideration of this Court.

Consequently, there is no substance in this appeal and the same is, therefore, dismissed.