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.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. CIVIL SECOND APPEAL NO.519/2011
Smt. Keli Devi & Ors.
Vs.
LRs of Kanhaiyalal & Ors.
Date of Judgment ::
25.2.2014
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Citation;AIR2014(NOC)536 Raj
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-
3
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
7
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 Exhibits10 & 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.
(ARUN BHANSALI), J.
rm/-
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