IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.288/2022 Date of Decision: 3rd July, 2025. Narinder Kumar .....Appellant. Versus Jatinder Kumar …..Respondent. Coram The Hon’ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?1 For the Appellant: Mr. Jeet Ram Poswal, Advocate. For the Respondent: Mr. Neeraj Gupta, Sr. Advocate with Mr. Janesh Gupta, Advocate. Bipin Chander Negi, Judge (oral). The Appellant, by filing this appeal under section 100 of the Code of Civil Procedure (for short, CPC), has assailed the judgement and decree dated 13.05.2022 passed by the learned Additional District Judge, Nalagarh, District Solan in Civil Appeal No. 51/2018 affirming the Judgement and Decree dated 16.08.2018 passed by the Learned Senior Civil Judge, Nalagarh, District Solan, H.P. in Civil Suit No. 50/1 of 2014 2. The parties shall hereinafter be referred to as "plaintiff" and "defendants" in accordance with their status before the trial court. 3. The brief facts as presented in the second appeal are that the plaintiff and defendant No. 1 are real brothers, and 1 Whether reporters of Local Papers may be allowed to see the judgment? YES 2 defendant No. 2 is their mother. The suit property, comprising land in Khewat/Khatauni No. 457/497, with Khasra Nos. 932 (21-32), 933 (22-40), 934 (11-20), 935 (28-50), 936 (36-98), 937 (20-10), 938 (45-00), and Kita/Plot No. 7, totaling 185.50 square meters, situated in Mauja Up-Mohal Naya Nalagarh, Hadbast No. 139/2, Tehsil Nalagarh, District Solan, H.P., was originally purchased by Sh. Lakhu Mal, the grandfather of the plaintiff and defendant No. 1. The parties also jointly own 39 bighas 13 biswas of land in village Doli, with each holding a 1/3rd share. However, the suit land has not been partitioned, and the plaintiff claims entitlement to a 1/3rd share in it as well. 4. The plaintiff alleges that the revenue records inaccurately reflect unequal shares, with the plaintiff being allotted only Khasra No. 933 measuring 22.40 square meters, on which he obtained a loan. It is contended that defendant No. 1 manipulated Mutation No. 286 by falsely reporting a Tamliq Nama through the Patwari Halka via Rapat No. 224 dated 22.01.2002, leading to incorrect entries in the revenue records. This mutation was signed by Ram Saran (father of defendant No. 1), Soma Devi (defendant No. 2), Jatinder (defendant No. 1), and Khushi Ram, without the plaintiff’s knowledge or consent. The plaintiff asserts that the Tamliq 3 Nama, the basis of the mutation, could not be traced despite efforts, and the mutation is illegal and without basis. The plaintiff seeks a declaration of his 1/3rd share in the suit property, correction of revenue records, and a permanent injunction restraining the defendants from dispossessing him or altering the property's nature. 5. The defendants contested the suit, raising preliminary objections regarding maintainability, estoppel, locus standi, and lack of clean hands. They claimed that Ram Saran had orally settled the property during his lifetime, distributing it among the plaintiff and defendants, which was reported to the revenue authorities, leading to the mutation. The plaintiff allegedly accepted his allotted share, constructed a shop on Khasra No. 933, and mortgaged it for a loan, while defendant No. 1 reconstructed shops on Khasra Nos. 935 and 936. Khasra No. 932, containing shops, was retained by Ram Saran for his livelihood and was later mutated equally among all parties after his death. The defendants argued that the plaintiff, having benefited from the settlement, cannot now challenge it. 6. The trial court framed the following issues on 22.12.2014: 4 1. Whether the plaintiff is co-owner and co-sharer of the suit property with the defendants and has got 1/3rd share therein as alleged?...OPP 2. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction,as prayed for ?..OPP 3. Whether in alternative, the plaintiff is entitled for joint possession of the suit property with the defendants.?..OPP 4. Whether the suit is not maintainable ?..OPD 5. Whether plaintiff is estopped from filing the present suit by his own act, conduct and acquiescence ?..OPD 6. Whether the plaintiff has no cause of action to file and maintain the present suit against the defendants?..OPD 7. Relief. . 7. After considering the evidence, the trial court dismissed the suit. The plaintiff, aggrieved by this decision, filed a first appeal arguing that the trial court failed to appreciate the facts and law correctly. The appellant emphasized that defendant No. 1 admitted in his testimony that the Tamliq Nama was in his possession but deliberately withheld it, raising suspicions about its authenticity. The appellant further argued that the equal distribution of land in village Doli and Khasra No. 932 suggests that Ram Saran intended equal shares, and the mutation was fraudulently obtained. The respondents defended the trial court’s judgment, asserting that it correctly evaluated the evidence and that the plaintiff, having availed benefits under the settlement, cannot now contest it. They prayed for the appeal’s dismissal. After hearing both parties and examining the records, the court considered the arguments. The appellant’s counsel stressed the non-production of the Tamliq 5 Nama as a critical lapse, while the respondents maintained that the trial court’s findings were sound. The first Appellate court dismissed the appeal therefore the present second appeal. 8. The undisputed facts establish that Sh. Ram Saran, the predecessor-in-interest of the parties, was the exclusive owner of the suit land, as reflected in the jamabandi for the year 1998-1999 (Ex. P4). Being the absolute owner, he had the unfettered right to alienate the property as per his wishes. The plaintiff himself produced Ex. P3, an application moved by Ram Saran before the A.C. 2nd Grade, seeking mutation of the family settlement whereby Khasra Nos. 933 to 938 were distributed among his two sons (plaintiff and defendant No. 1) and his wife (defendant No. 2). Mutation No. 286 (Ex. D1) was attested in the presence of Ram Saran, the plaintiff, defendant No. 2, and Khushi Ram, giving effect to this arrangement. 9. The plaintiff does not dispute his father’s signatures on Ex. P3 or the mutation, though he alleges that defendant No. 1 manipulated Ram Saran, a claim that appears improbable given Ram Saran’s background as a government employee (Branch Postmaster) and his active litigation history, including a rent dispute pursued up to the Supreme Court. 6 10. The plaintiff contends that there was no justification for Ram Saran to deprive him of an equal share, particularly since the land at village Doli was equally distributed. However, the uneven distribution of the suit property—with the plaintiff receiving 22.40 sq. meters, defendant No. 1 receiving 55.30 sq. meters, and defendant No. 2 receiving 76.20 sq. meters— was a deliberate and reasoned decision. The evidence reveals that Ram Saran and his wife resided with defendant No. 1, who cared for them, especially during their illnesses, while the plaintiff had separated from them in 1999. Ram Saran’s allocation of a larger share to his wife ensured her financial security, while defendant No. 1’s greater share acknowledged his active role in managing the property, including litigation against tenants. The plaintiff’s claim that Ram Saran was unduly influenced is belied by the fact that he retained Khasra No. 932 for himself, demonstrating his independent decision-making. 11. The plaintiff’s argument regarding the non-production of the Tamliq Nama (alleged settlement deed) is unsubstantiated. While defendant No. 1 stated in cross- examination that such a document might exist, he clarified that he had never seen it nor demanded it from his father. The absence of any reference to a written deed in Mutation No. 7 286 (Ex. D1) or its enclosure with Ex. P3 suggests that the settlement was oral. The plaintiff’s admission in cross- examination that a family partition had taken place and that he had reconstructed his allotted portion (Khasra No. 933) further undermines his challenge. His claim that he only discovered the unequal distribution in 2014 is implausible, as he had mortgaged the property (based on revenue records) for a loan of Rs. 85 lakhs during Ram Saran’s lifetime, indicating prior knowledge of the mutation. 12. The trial court rightly concluded that the plaintiff had acquiesced to the oral settlement by acting upon it for years. His belated challenge, after availing benefits under the arrangement, lacks merit. The applications under Order 41 Rule 27 CPC (for additional evidence) and Order 14 Rule 5 CPC (for framing additional issues) were correctly dismissed, as no material evidence or pleading necessitated them. The issues framed adequately covered the controversy, and no proof of a withheld settlement deed was forthcoming. 13. In conclusion, the uneven distribution of the suit property was a conscious, justified act by Ram Saran, considering the familial circumstances and the roles of the parties. The plaintiff’s challenge, based on mere assumptions and after long acquiescence, cannot succeed. The trial court’s 8 judgment dismissing the suit is upheld, and the appeal is devoid of merit. Both applications moved during the appeal are dismissed. The findings on the issues are affirmed. 14. In the aforesaid facts and attending circumstances, there arises no question of law, much-less a substantial question of law for consideration of the Court, therefore, the appeal is dismissed being devoid of any merit. Pending miscellaneous applications, if any, also stand disposed of. (Bipin Chander Negi) Judge 3rd July, 2025 (Gaurav Rawat/T.B)