ISHWARI DEVI Vs. SARLA DEVI

JUDGEMENT

(1.) The dispute in this appeal relates to interpretation of a sale deed. It is not disputed that one Churu Ram was the owner of the property in dispute. He executed a sale deed on 28/12/1976 in favour of the appellant the relevant portions of which are extracted below : "and whereas the Vendor is the owner and in possession of a two- storey building called 'anand Bhawan' built in four sets which are old and in dilapidated conditions over a land Khewat No. 32, Khatauni No. 48, Khasra No. 613 admeasuring 4 Biswas, Gair Murnkin, situated in Kethu No. 7, Tehsil and District Shimla and entered into revenue records as per Jamabandi for the year 1970-71; Now this sale deed witnesseth as under: That the Vendor, as per the above sale agreement, has transferred his land admeasuring 4 Biswas, Khewat No. 32, Khatauni No. 48, Khasra No. 613 over which a two-storeyed building called 'anand Bhawan' is built, situated in Village Kethu, Tehsil and District Shimla for Rs. 13,000. 00 (Rupees Thirteen Thousand only) with all its title, ownership, road, water, air, light, including other amenities, fittings, fixtures, drains and other rights whatsoever the Vendor has in respect of the said land and the house, in favour of the Vendee completely and permanently. The possession of the property and the land sold has been handed over to the Vendee today. The possession of one set is with the husband of the Vendee and the possession of rest of the property is given through the tenants. The tenants living in the above property are (1 Sant Ram, (2 Salig Ram, (3 Bali Ram and (4 Amogh Chand. "

(2.) Prior to construing the sale. deed and finding out whether what was transferred was entire Anand Bhawan owned by Churu Ram or only 4 biswas of Khasra No. 613 it is necessary to mention few facts not with a view to decide title of appellant but to emphasise that things were not as they have been made out by the District Judge which has resulted in not only in grave error of law but even gross miscarriage of justice. The appellant is the wife of Amogh Chand who was tenant of one of the sets and was mentioned in the sale deed at No. 4. The respondent is the daughter-in-law of Sant Ram who was also tenant of one set and was mentioned as No. 1. In 1979 the appellant filed a petition for eviction of Sant Ram. It was contested by him. He denied ownership of the appellant. Therefore, the appellant to prove her title filed the sale deed and Jamabandi, that is the revenue extract of 1970-71. The entry in it is as under : "khewat Khatauni No. No. Name of owner with address Name of cultivator with address Khasra No. Possession Revenue 32 48 Churu Self in 613 0-4 0-5 Ram s/o Ram Ritu Mall In possession with the Lehri Bhawan 0-1 possession owner Ganga Ram permission of owner. Bungalow 0-3 Manderja Khewat No. 29 Successor Shamliat Deh. " On this entry Sant Ram claimed that the area of Anand Bhawan was 7 biswas out of which 4 biswas was transferred in favour of the appellant. The Rent Control Officer held that the claim was based on misapprehension as the details of 4 biswas mentioned in the khasra was added up to submit that total area was 7 biswas. What is necessary to be mentioned that Sant Ram never claimed that only a part of Anand Bhawan was sold and the portion in his occupation continued to be with Churu Ram or his successor. In 1981 the application for eviction was allowed, only, to the extent that Sant Ram was found in arrears from 28/12/1976 to 31/8/1979 at the rate of Rs 86. 00 p. m. But Sant Ram was probably aware that the total area over which the building was standing was 7 biswas. Therefore in the same year, that is 1980-81 something unexplainable happened. Apart from one extract repeating the entry of Jamabandi as it was in 1970-71 another entry was made in name of Churu Ram over Khasra No. 491. The exact entry is reproduced below :"khatauni Name of Name of Khasra Possession Revenue No. owner with cultivator No. Remarks address with address 239 Churu Ram Owner in 491 0-3 468 s/o Ram possession. Unauthorised Ritu Mal Bungalow Wasi Deh" If Churu Ram was owner how could he be in unauthorised occupation. The two do not go together. That is why to put at the mildest the entry was purposive. It is surprising that conscience of none of the courts below was stirred by such entry and the District Judge or the High court did not care to ascertain as to how such entries came to be made in the revenue record and did not consider it appropriate to take action against the officials concerned. All this is being said not because anything turns on it so far title of the appellant is concerned but only to emphasise that the courts below should have been more vigilant.

(3.) Reverting to the narration of facts Sant Ram being armed with entry of 1980-81, procured probably at his instance, obtained power of attorney from the two sons of Churu Ram who of course had nothing to lose and within one month as holder of power of attorney he sold 3 biswas in favour of his daughter-in-law, the respondent. In 1987 the appellant filed another eviction petition against Sant Ram which was contested and now ownership of the flat was claimed with respondent. The Rent Control Officer allowed the application and commented adversely against Sant Ram. Then the respondent filed the present suit for declaration that the two orders passed by Rent Control Officer were null and void and sought an injunction restraining appellant from interfering in her possession. The suit was dismissed by the trial court. It was held that the sale deed in favour of respondent was invalid. The oral and documentary evidence was rejected and recitals in sale deed of 1976 were held to be conclusive. The trial court further noticed that when eviction proceedings were started by the appellant against another tenant he went to the length of denying title of appellant and claimed that entire right and title of Anand Bhawan vested in respondent. In appeal the District Judge relying on evidence of Kanungo who had gone to demarcate the area on spot, tax receipts and report of Commissioner allowed the appeal. It was held that since Churu Ram sold only four biswas of Khasra No. 613 and no corrigendum was issued, the sale of remaining area of three biswas of Anand Bhawan which had separate Khasra No. 491 by his sons in favour of respondent was valid. The order was maintained by the High court.