IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA 97 of 1997. Date of decision July 29, 2008. Jiwa Nand (Dead) through LRs Sant Ram and others …Appellants. Versus Bhawan Singh & another …Respondents. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the appellants Mr. K.D.Sood, Advocate. For the respondents Mr. Bimal Gupta, Advocate. Dev Darshan Sud, J. (Oral). This appeal has been preferred by the legal representatives of the plaintiff against the concurrent findings of the two Courts below. Shri Jiwa Nand, plaintiff filed a suit for declaration and consequential relief of permanent prohibitory injunction against the defendants – respondents on the allegations that one Shri Naino and Budhia (defendant No. 2) inherited land from their father Rup Singh and were co sharers to the extent of 1/3 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - share in the suit land with the plaintiff in land comprised in Khata Khatauni No. 138/295, khasra Nos. 948, 949, 950 and 1297, measuring 17 biswas, situated in Mauza Kando Bhatnol. Naino transferred his whole share to the plaintiff and Budhia, defendant No. 2, transferred his entire share comprised in Khasra Nos. 948 and 950 through a registered sale deed to the State of Himachal Pradesh through Kando Bhatnol C.M.P. Society. The plaintiff prayed that sale deed dated 18.8.1990 executed by defendant No. 2 in favour of defendant No. 1 out of Khatauni No. 295 is illegal and not binding upon the plaintiff and the entry in revenue records showing Budhia and Naino as co sharers to the extent of half share is against facts, illegal, fraudulent as they are co sharers to the extent of 1/3rd only. It was pleaded that defendant No. 2 is an illiterate and simpleton whereas defendant No. 1 is a very influential person who connived with the revenue staff to get the two deeds executed without consideration and registered and that defendant No. 1 was threatening to occupy the suit land forcibly etc. - 3 - The learned trial Court settled five issues. Two crucial issues fundamental to the decision of the entire case were as to whether the sale deed dated 18.8.1990 is the result of fraud, is void and illegal and whether defendant No. 2 Shri Budhia was incompetent to alienate the property from Khatauni No. 295. These issues were taken up together for decision and the trial Court held that the two sale deeds Ex. DW-2/A dated 18.8.1990 and Ex.DW-2/B dated 30.7.1990 disputed by the plaintiff were genuine and that defendant No. 2 was fully competent to execute them. On the question of undue influence etc., the Court, on consideration of the evidence of DW-4 Bali Ram, Stamp Vendor, who proved Ex.DW-4/A register showing purchase of stamp paper by the defendants, Shri Chandan Singh, Advocate, DW- 5, who scribed the sale deed Ex.DW-2/A, DW-2 Shri Dev Raj, Sub Registrar who stated that he had enquired from the vendor as to whether the transaction was voluntary and whether he accepted the sale deed executed by him, held that no fraud committed was proved, the transaction being voluntary. On issue No. 4-B which was as to whether the plaintiff is entitled to the relief of permanent - 4 - prohibitory injunction, the suit was partly decreed. The Court held that till partition, no party can claim exclusive possession of the joint land and the plaintiff was entitled to restrain defendant No. 1 from interfering on that portion of the suit land qua which the decree was passed. These findings have been reaffirmed by the learned appellate Court which reconsidered the entire matter and the challenge made by the plaintiff that the change in the revenue entries showing the share of the parties to be more than 1/3 had not been accepted. It was the latest entries in the revenue record which were entitled to presumption of truth attached and the allegations of the plaintiff that the revenue record was not entitled to presumption of truth was without any basis or substance. The appeal was admitted by this Court on four substantial questions of law, namely: 1. Whether in view of the fact that Budhia was not in exclusive possession of the property and he had already sold his share in the joint Khata, the sale made by him in favour of Bhawan Singh vide DW-2/A was legal and valid? 2. Whether the courts below have misconstrued oral and documentary - 5 - evidence, particularly the documents of title DW-2/B, DW-2/A, DW-1/C and Ex.PA, PW-1/D and DA? 3. Whether in view of the fact that Budhia admittedly was not in possession of the property, the presumption attached in the revenue records was rebutted and due execution of the sale deed by Budhia in favour of Bhawan Singh was proved in the facts and circumstances of the case? 4. Whether the findings that the plaintiff has sold more than his share is not based on any evidence and is sustainable in law and the plaintiff is entitled to the declaration as prayed for? I have heard the learned counsel for the parties and gone through the record. The questions as urged by the appellants are nothing but a repetition of the same fact and asking for a retrial by this Court on facts /issues already determined. On sale deed Ex.DW-2/A, the Courts below have held that it was a legal and valid document. While considering this, the other documents Ex.DW-2/B, Ex.DW-1/C, Ex.PA, Ex. PW-1/D, Ex.DA, jamabandis for the year 1988-89 have also been scrutinized - 6 - thoroughly applying the principle that latest entries in the revenue record would prevail. Questions 3 and 4 are reaffirming the same questions, namely that Budhia had in fact sold land more than his share. The learned Courts below have scrutinized the evidence and come to clear and cogent findings on fact. On re-appreciating the facts, there is not an iota of evidence on record to show that there has been any connivance by the defendants with the revenue authorities for changing the entries to perpetuate any fraud or to deprive the plaintiff of his legitimate rights. As held by me, four questions raised for determination overlap and basically call upon this Court to re-determine the share of the appellant herein and to hold that it is the same as urged by him before the trial Court and the appellate Court and that the sale deeds are the outcome of fraud etc. as alleged. These are questions of fact. Both the Courts below on clear and cogent evidence as noticed above, have concluded voluntary nature of the sale transactions and the share of the parties and have chosen to believe evidence of the respondents rather than accepting the estimation of the plaintiff. The - 7 - findings have been arrived at after application of correct principles. I do not find any perversity on record to show that there was connivance with the revenue department or that the defendant was not capable of executing sale deeds in question. All these questions are answered against the appellant. This appeal is dismissed. There shall be no order as to costs. July 29, 2008 (PC). (Dev Darshan Sud), J.