SULENDER SINGH AND OTHERS Vs. PRITAM AND OTHERS

JUDGEMENT

(1.) THIS Regular Second Appeal is directed against the judgment and decree dated 31.12.2004 rendered by the learned Additional District Judge, Sirmaur District at Nahan in Civil Appeal No. 16 -N/13 of 2004. Key facts necessary for the adjudication of this Regular Second Appeal are that the predecessor -in -interest of the respondents -plaintiffs (hereinafter referred to as 'plaintiffs' for convenience sake) Sh. Baru Ram claimed himself to be the owner in possession of 2/3rd share in the land bearing Khata No. 46, Khasra No. 236/58/2 corresponding to Khasra No. 502/236/58 measuring 4 bighas 13 biswas, Khasra No. 352/235/2 corresponding to Khasra No. 500/352/235 measuring 2 bighas 8 biswas and Khasra No. 357/234/4 measuring 5 biswas, kita 3 total measuring 7 bighas 6 biswas on the basis of mutation No. 375 of the partition of Khata No. 46, which was later on incorporated in the jamabandi for the year 1999 -2000 in Khata Khatauni No. 58/70 situated in Mauza Parduni, Tehsil Paonta Sahib, District Sirmaur, H.P. (hereinafter referred to as the "suit land"). According to him, about 20 years ago, the appellants -defendants (hereinafter referred to as the "defendants" for convenience sake), namely, Ram Pal and Joginder requested him to give them some land near road side of their house as they had no land near the road. He was more than 80 years. Defendants expressed their apprehension to him that on account of his illness, he may become mentally weak and hard of hearing and after his death, they would not be safe on the land given to them for construction of their house, therefore, a request was made to him to transfer the ownership of the land to them. Since the relations between the parties were cordial, predecessor -in -interest of the plaintiffs agreed to transfer the land measuring 11 biswas to the defendants over which their houses were standing. Therefore, defendants collected the papers from the Halqua Patwari and brought Sh. Baru Ram to Paonta Sahib for transferring the land over which their houses were standing on 11.1.2000. He was merely asked to put his thumb impression on the document disclosing that the same is a transfer deed in respect of 11 biswas of land in their favour. He believed the defendants and put his thumb impression on the document that he was just transferring the land measuring 11 biswas in favour of the defendants. According to him, he had no occasion to gift away his entire share in the suit land as he had two sons and two grand sons of predeceased sons alive. He claimed himself to be an old man suffering from hard of hearing. Defendants taking advantage of his being illiterate and rustic misrepresented him that he was merely going to transfer 11 biswas of land, whereas they got his thumb impression on a document, which was a gift deed where the entire share measuring 7 bighas 6 biswas was transferred in their favour by way of that document. The true nature and the contents of the documents were not disclosed to him. According to him, the possession of the entire suit land was never handed over to the defendants; therefore, the gift deed was not complete. The cause of action accrued to him on 9.10.2001 when the defendants interfered in his possession. It is in these circumstances, the predecessor -in -interest of the plaintiffs have filed the suit for permanent prohibitory injunction and also prayed for restraining the defendants from forcibly ejecting him from the suit land or causing any interference in his possession.

(2.) SUIT was contested by the defendants. Defendants admitted that the plaintiff was co -owner in possession of the suit land to the extent of his share but denied that he had become physically weak. According to them, the suit has been filed at the instance of one Mula, who had inimical relations with them. According to them, the land has been gifted to them by Sh. Baru Ram. The gift deed was duly registered by the plaintiff in favour of the defendants out of love and affection. It was executed by the plaintiff Baru Ram in the presence of marginal witnesses and the plaintiff was identified before the Sub -Registrar, Paonta Sahib by Sh. Bihari Lal, Numberdar. The gift deed was prepared by the document writer. The contents of the same were read over and explained to Baru Ram in the presence of marginal witnesses. He put his thumb mark in the presence of marginal witnesses. Thereafter, it was presented before the Sub -Registrar. He also read over the same to the plaintiff. He also put his thumb mark and gave his consent to the Sub -Registrar. According to them, the suit land was in their possession. No mis -representation or fraud has been committed upon the plaintiff by the defendants.

(3.) MR . Karan Singh Kanwar has vehemently argued that the learned Additional District Judge has failed to take into consideration the effect of section 60 of the Registration Act, 1908 on the validity of the gift deed Ex. DW -2/A. He then contended that the learned Additional District Judge was not justified in declaring the whole of the gift deed wrong and illegal, including land measuring 11 biswas comprised in Khasra No. 502/236/58/1. In other words, his submission is that the defendants are entitled at least to be declared owner of Khasra No. 502/236/58/1 on which they have constructed their houses.