MATHURA Vs. DEVI RAM
LAWS(HPH)-1997-6-43
HIGH COURT OF HIMACHAL PRADESH
Decided on June 19,1997

MATHURA Appellant
VERSUS
DEVI RAM Respondents




JUDGEMENT

ARUN KUMAR GOEL, J. - (1.)THIS revision is directed against the order dated 12.2.1996 passed by Sub Judge Ist Class, Sundernagar, District Mandi, H.P. By means of impugned order, application under Order 6 Rule 17 CPC filed by the petitioners, has been rejected.
(2.)IN order to properly appreciate the respective submissions, a few facts relevant for determination of this revision need to be noticed. Petitioner No. 1 purchased 1 bigha 11 biswas and 3 biswansi of land, hereinafter referred to as the suit land, from Smt. Fagni Devi petitioner No. 2. The sale has been questioned by Devi Ram and four others arrayed as respondents No. 1 to 5 in this revision, who before the trial Court filed a suit for declaration and possession by way of ejectment of a part of this land. In this suit issues were framed as far back as on 23.8.1994 and respondents No. 1 to 5 (hereinafter referred to as the plaintiffs) have concluded their evidence on 6.12.1994. Record of the case shows that the case was listed for the evidence of the petitioners (hereinafter referred to as the defendants) on 22.4.1995 and thereafter on 8.6.1995 when on both these occasions, no evidence on their behalf was present nor any such evidence had been brought by the defendants. Similarly, lists of witnesses as required under Order 16 Rule 1 of the CPC was also not filed. Instead on 8.6.1995 an application under Order 14 Rule 5 CPC was filed which was finally disposed of on 16.8.1995 when Issues No. 6 and 8 were re -cast. Since the onus on these issues was placed upon the plaintiffs, the case was adjourned for the said purpose. On 5.9.1995 itself on a prayer having been made on behalf of the defendants, case was adjourned to 25.9.1995 for filing an application for amendment of written statement, such an application was filed on 20.10.1995 and by means of impugned order, the said application has been rejected. Threefold prayer was made in the application for amendment of written statement.
(3.)EXISTING preliminary objection No. 3 was proposed to be substituted with the following effect : "That the plaintiffs during the period of last more than 20 years after the death of Shri Hirdu and attestation of the Mutation No. 449 of the suit land in favour of defendant No. 1 have failed to raise any objection against the same, although they were aware of these entries, rather the plaintiff No. 1 himself has negotiated for the purchase of the share of the defendant No. 2 and further by their own acts and conducts they have represented to the defendant No. 1 and public in general that the defendant No. 2 is absolute owner in possession of the suit property, as such the plaintiffs are estopped by their own acts and conducts to file the present suit and to challenge the validity of the sale of the suit land in favour of defendant No. 1."
Similarly in reply to paragraph 2 of the written statement on merits, the following was proposed to be added : "However the ancestral nature of the suit land is not admitted and the suit property was self acquired property of late Shri Hirdu and the averments to the contrary are not admitted." Existing paragraph 8 of the written statement was proposed to be substituted with the following : "Para No. 8 of the written statement is admitted to the extent that the suit land was sold to the defendant No. 1 by a registered sale deed as alleged and in pursuance of the said sale deed the possession of the suit land was also delivered to the defendant No. 1. The rest of the averments made in this para of the plaint are wrong and not admitted. The sale of the suit land in favour of the defendant No. 2 by the defendant No. 1 is perfectly valid and legal and the defendant No. 1 is now the absolute owner in possession of the suit land. In the alternative it is submitted that the plaintiffs by their own acts and conducts and their dealing with the defendant No. 1 respecting the suit property during the period of last 20 years have represented to the defendant No. 1 and to the general public that the defendant No. 2 is the absolute owner in possession of the suit property and further the plaintiffs have failed to raise any objection against these entire at the earliest available opportunity and all this conduct of the plaintiffs have led the defendant to believe that the defendant No. 2 is the real owner of the suit property. The defendant No. 1 by acting like a prudent purchaser and after making reasonable and detailed enquiries about the title of the defendant No. 2 in the suit land has purchased the same for valuable consideration at the prevailing market price, as such the defendant No. 1 is a bonafide purchaser for valuable consideration and the sale of the suit land in her favour is perfectly valid and binding upon the plaintiffs as well as the whole world."



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