YOG RAJ & OTHERS Vs. HIMANSHU SHARMA

JUDGEMENT

(1.) Predecessor-in-interest of the present appellants, Shri Bishan Dutt, hereinafter referred to as the defendant, feeling aggrieved and dissatisfied by the judgment and decree dated 7.4.2001, passed by learned District Judge, Solan in Civil Appeal No.8-S/13 of 2001, had preferred the present appeal with a prayer to quash and set aside the same.

(2.) Challenge to the impugned judgment and decree is on the grounds inter alia that the same on account of illegalities and irregularities committed by learned lower appellate Court is neither legally nor factually sustainable and the judgment and decree passed by the trial Court rather reversed on highly conjectural and erroneous grounds. The findings that the property in dispute is still joint between the parties, are stated to be contrary to the oral as well as documentary evidence available on record. The Jamabandis in previous suit Ex.DA and DB have been pressed into service qua this aspect of the matter. The court below allegedly passed the impugned judgment and decree mechanically and without application of mind. The provisions contained under Section 17 of the Registration Act and Section 35 of Stamps Act are stated to be wrongly relied upon. Merely that the family partition has not yet been implemented was no ground to discard the claim set out by the defendants. The overwhelming evidence suggesting that the predecessors of the parties had been litigating in the Civil Court on the issue of private partition and the matter is still pending in the Apex Court has been erroneously ignored. The Court below has refused erroneously to invoke the rule of estoppel against the plaintiff because as per the evidence on record, the plaintiff himself has been claiming the parties in separate possession on the basis of private partition. Therefore, the findings recorded by learned lower appellate Court that the suit land is joint of the parties have been stated to be erroneous and perverse, hence sought to be quashed and set aside.

(3.) The appeal has been admitted on the following substantial questions of law: