IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Regular Second Appeal No. 369 of 1996. Decided on: August 6, 2008. __________________________________________________ Dolu and anr. … Appellant. Versus Resam Devi and others. … Respondents. ___________________________________________________________ Coram: Hon’bl Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the appellants : Mr. Rajnish K. Lal, Advocate vice counsel. For Respondents : Mr. Janesh Gupta, Advocate vice counsel. ___________________________________________________________ Rajiv Sharma, Judge. This Regular Second Appeal has been filed against the judgment and decree passed by the learned Additional District Judge, Kullu on 31.10.1996 in Civil Appeal No. 12 of 1996. The brief facts necessary for adjudication of this regular second appeal are that the respondents, hereinafter referred to as the plaintiffs for convenience sake, have preferred civil suit for declaration and injunction in the Court of Sub Judge Ist Class, Kullu on 12.4.1991. This suit was contested by the appellants, hereinafter referred to as the defendants for convenience sake. The trial Court decreed the suit on 30.3.1996. The defendants preferred an appeal against the judgment and decree dated 30.3.1996 in the Court of learned Additional District Judge, Kullu on 17.5.1996. The learned Additional District Judge dismissed the 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 appeal on 31.10.1996. This regular second appeal has been preferred against the judgment and decree dated 31.10.1996. This regular second appeal was admitted by this Court on the following substantial questions of law: 1. Whether the defendant No.1 who was admittedly a co-sharer with plaintiff in Khasra No. 986 measuring 13 biswas could sell his share to appellant No.2 when he was in possession thereof and parties had more than 22 bighas of land which was admittedly joint? 2. Whether the sale of thirteen biswas of land which was within the share of defendant No.2 could be transferred and declaration that the sale deed was void ab initio and not binding on the plaintiff could be granted? 3. Whether the findings of the court below are vitiated for non-consideration and misreading of oral and documentary evidence which has vitiated the findings? 4. Whether the findings of the District Judge that the sale by defendant No.1 of his share in Khasra No. 986 would amount to ouster of the appellant and result in adverse possession is sustainable in law when admittedly property was claimed to be joint of the parties? Mr. Rajnish K. Lal, Advocate has strenuously argued that the judgments and decrees passed by the courts below are not sustainable in the eyes of law. Mr. Janesh Gupta, Advocate has supported the judgments and decrees passed by the Courts below. I have heard the learned counsel for the parties and have perused the record carefully. 3 Since the substantial questions of law are inter-connected, they are taken up together. Defendant-Dolu has sold half share measuring 0-6-10 bighas to Shri Uttam Chand from Khasra No. 986. The only issue required to be decided in this appeal is whether Dolu was in possession of Khasra No. 986 at the time of execution of the sale. It is evident from the revenue entries that Khasra No. 986 has been recorded in the joint ownership and possession of the plaintiffs and defendant-Dolu. Defendant-Dolu has asserted that there was private arrangement between the predecessor in interest of the parties and in that arrangement the Khasra number was being cultivated by him. There is no evidence to this effect on record. If there was some family partition, the same could be given effect in the revenue record and after that in the Khasra Girdawari. Defendant-Dolu has admitted in cross-examination that the family partition was reduced in writing. This evidence has neither been produced nor proved on record. If there was any partition, the same ought to have been reported to the Patwari. The defendants have also failed to prove on record the factum of delivery of possession in pursuance to sale deed Ext. PB. Defendant-Dolu has failed to prove on record his possession over the suit land i.e. Khasra No. 986. The property remained joint and it was never partitioned. Defendant-Uttam Chand was only 5-6 years when the alleged family partition had taken place. He has admitted in his cross-examination that at the time of delivery of possession no measurement of Khasra No. 986 was conducted. The statement of PW1-Dulu Ram is in consonance with the documentary evidence qua joint possession of the suit land. PW2 has supported his version. It is evident that at the time of execution of the sale deed Ext. PB, defendant-Dolu was not in possession of the suit land. 4 Defendant-Dolu has not proved the family partition, as alleged. The concurrent findings of facts recorded by both the Courts below need not be interfered with in this regular second appeal. There is no substantial question of law involved in this regular second appeal and accordingly the same is dismissed. No costs. (Rajiv Sharma), J. August 6, 2008. (cr)