IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 235 of 1998. Judgement reserved on: 30.4.2009. Date of decision: May 11, 2009. Smt. Kamla Devi ….. Appellant. Vs. Smt. Kaushalya Devi & ors. …..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : M/s K.D.Sood and Balwant Singh, Advocates. For the Respondents : Mr. R.R. Rahi, Advocate, for respondent No.1. Kuldip Singh, Judge. The appellant, who was appellant No. 1, suffered a decree of dismissal of Civil Suit No. 53/1 of 1987/84 on 13.6.1989 from the court of learned Senior Sub Judge, Bilaspur, she filed Civil Appeal No. 60 of 1989 against the decision dated 13.6.1989, which was also dismissed by the learned District Judge, Bilaspur on 12.5.1998, therefore, she has come in second appeal in this court. 2. The brief facts of the case are that appellant and respondents No. 9 and 10 filed a suit for declaration and permanent prohibitory injunction that they were joint owners on land measuring Whether the reporters of the local papers may be allowed to see the Judgment? …2… 37-16 bighas comprised in khewat No. 202, khatauni No. 253, 255 and 257. The respondents No. 4 and 5 were non-occupancy tenants under respondents No. 2 and 3. The respondents No. 4 and 5 by virtue of mutation No. 719 dated 25.7.1975 had acquired proprietary rights only on the shares of respondents No. 2 and 3 but respondents No. 4 and 5 were shown as tenants on behalf of other co-sharers including respondents No. 2 and 3, and, therefore, shares of respondents No. 2 and 3 were kept intact in the aforementioned land including the suit land. 3. The respondents No. 2 and 3 vide sale deed dated 31.3.1983 Ex. DA had sold the suit land in favour of respondent No. 1, which sale deed according to appellant and respondents No. 9 and 10 is void, collusive and not binding on them. The respondents No. 4 and 5 acquired proprietary rights of the shares of respondents No. 2 and 3 and therefore, shares of respondents No. 2 and 3 became extinct and they had left with no saleable interest. It was alleged that appellant, respondents No. 8, 9 and 10 are only joint owners in possession of the suit land. They also claimed title on the suit land by virtue of adverse possession. On these grounds, the legality of sale deed dated 31.3.1983 was assailed being illegal, collusive without consideration and not binding on them. 4. The suit was contested by filing written statement, in which preliminary objections of maintainability, jurisdiction, valuation, cause of action and non-joinder of necessary parties were taken. The claim of plaintiffs was denied. The sale deed dated 31.3.1983 is valid. The respondents No. 2 and 3 had shares and the sale …3… deed was for consideration. In replication, the stand taken in the written statement was denied and the case set up in the plaint was reaffirmed. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiffs and proforma defendants are joint owners in possession over the suit land as alleged? OPP. 2. Whether sale deed dated 31.3.1983 executed by defendant No. 1 was collusive and without consideration as alleged? OPP. 3. Whether the defendants are interfering over the possession of plaintiffs as alleged? OPP. 4. Whether the suit is not maintainable as alleged? OPD. 5. Whether this court has no jurisdiction as alleged? OPD. 6. Whether the suit is not properly valued as alleged? OPD. 7. Whether the suit is time barred? OPD. 8. Whether the suit is bad for non-joinder of necessary parties as alleged? OPD. 9. Relief. The learned trial court answered issues No. 1 to 3 and 5 to 8 in negative and issue No. 4 in affirmative and dismissed the suit. The learned District Judge maintained the dismissal of the suit in appeal. The present second appeal has been admitted on the following substantial questions of law:- 1. Whether oral and documentary evidence, especially the statement of PW 1 Shrimati Kamla Devi, PW 2 Nain Singh, Ex. P-1 Misal Haquiat, Ex. PG Misal Haquiat Istmal 1967- 63, Ex. P-2 and P-3 Jamabandi for the year 1980-81 Ex. PA (sic PB) the mutation, Ex. DA sale deed, have been appreciated in the proper perspective? 2. Whether the ingredients for the execution and proof of a valid sale deed stood established and the alleged sale …4… deed Ex. DA was a valid document executed for consideration or not? 3. Whether from the revenue record it stood established that the share in the Khata of defendant No. 2 and 3 was 20/144 and the said defendant had exceeded the share on executing the alleged sale deed? 4. Whether from Ex. PA (sic Ex.PB) mutation conferring proprietary rights, it stood proved that defendant No. 4 and 5 were the tenants of defendant No. 2 and 3 and not of all the co-owners, and if so its effect? 5. I have heard Mr. K.D. Sood, learned counsel for the appellant and Mr. R.R.Rahi, learned counsel for respondent No.1, none appeared on behalf of other respondents. Mr. Sood has submitted that respondents No. 2 and 3 had no saleable interest for executing sale deed Ex. DA. The execution of sale deed Ex. DA and mutation Ex. PA conferring proprietary rights were not proved. The other oral and documentary evidence has not been appreciated in the proper perspective. The learned counsel appearing on behalf of respondent No. 1 has supported the impugned judgement, decree and has submitted that execution of sale deed Ex. DA is a finding of fact, which cannot be disturbed in second appeal, the re-appreciation of the evidence is also beyond the scope of second appeal. The mutation Ex.PA has been proved on record. The two courts below have concurrently held that respondents No. 2 and 3 had saleable interest and, therefore, on this ground no fault can be found with the sale deed Ex. DA. 6. The grievance of appellant in substantial question of law No. 1 is that statements of PW 1, PW 2, misal haquiat Ex. P-1, misal haquiat Ex. PG, jamabandies Ex. P-2 and Ex.P-3, mutation Ex. PB …5… and sale deed Ex. DA have not been appreciated in proper perspective. In substantial question of law No.1, there is no grievance with respect to misconstruction or misinterpretation of documents and statements mentioned therein. In second appeal re- appreciation of evidence is not permissible. In substantial question of law No.1, the appellant has projected nothing but re-appreciation of evidence. Therefore, substantial question of law No.1 is answered against the appellant. 7. Dilbar and Prem Singh vide sale deed Ex. DA transferred land measuring 6-12 bighas in favour of Kaushalya Devi. DW 1 Kaushalya Devi has stated that vide sale deed Ex. DA she had purchased the suit land from Dilbar and Prem Singh and came in possession of the land sold. DW 2 Dilbar has stated that he and Prem Singh had jointly sold the land to Kaushalya Devi vide sale deed Ex. DA, which bears his signatures. This witness was not questioned with respect to joint execution of sale deed Ex. DA by Prem Singh. He has been given vague suggestion that sale deed Ex. DA was forged by him, which he denied. The sale deed Ex. DA is a registered document, hence execution of sale deed Ex. DA by Dilbar and Prem Singh in favour of Kaushalya Devi has been proved on record. The substantial question of law No. 2 is decided against the appellant. 8. The appellant has put forward the case that respondents No. 2 and 3 had 20/144 share in the khata in question only and therefore, respondents No. 2 and 3 could not execute the sale deed Ex. DA inasmuch as respondents No. 2 and 3 had exceeded their …6… shares while transferring the land to Kaushalya Devi vide sale deed Ex. DA. In paragraph-3 of the memorandum of appeal, the appellant has submitted that respondents No. 2 and 3 had 20/144 shares in joint khata measuring 50-15 bighas and the alleged sale being in excess of the holding, taking into account the land which had vested with the tenants. In plaint it has been pleaded that khasra Nos. 781, 789, 798, 1042 and 1044 were with respondents No. 4 and 5 as occupancy tenants and they acquired proprietary rights of the shares of respondents No. 2 and 3. As per sale deed Ex. DA, land comprised in khasra Nos. 668, 1040, 1024 and 1025/2, total measuring 6-12 bighas was sold to Kaushalya Devi. The tenancy land and the land covered vide sale deed are absolutely different parcels of land, and, therefore, tenancy land has no bearing on the land, which was sold by respondents No. 2 and 3 to Smt. Kaushalya Devi respondent No.1. The two courts below have gone into this question and recorded the finding against the appellant. It has not been established on behalf of the appellant that respondents No. 2 and 3 had left no land with them which could be transferred to respondent No. 1. The substantial question of law No. 3 is decided against the appellant. 9. Ex. PB mutation No. 719 indicates that proprietary rights were conferred on Devi Ram, Narpat in equal share on half share and Kanshi Ram, Bakshi, Krishan in equal share on remaining half share. As per mutation Ex. PB, respondents No. 4 and 5 and other persons were tenants under the owners on whom ultimately proprietary rights were conferred. The appellant herself in the plaint has pleaded that respondents No. 4 and 5 were occupancy tenants on behalf of …7… respondents No. 2 and 3 and others on khasra Nos. 781, 789, 798, 1042 and 1044. The case of the appellant in nutshell is that after conferring of proprietary rights in favour of tenants, the respondents No. 2, 3 had left no share which could be transferred by way of sale deed. At the cost of repetition it is again observed that khasra numbers of the tenancy land referred to in paragraph -3 of the plaint and the land which has been sold vide sale deed Ex. DA are entirely different. Therefore, conferring of proprietary rights vide mutation Ex. PB on the tenants does not affect the title of respondents No. 2 and 3 for transferring the land to respondent No. 1 vide sale deed Ex. DA. The substantial question of law No. 4 is also decided against the appellant. 10. The two courts below have rightly appreciated the material on record and returned concurrent findings against the appellant, who has failed to make out any case for interference. 11. No other point was urged. 12. The result of the above discussion the appeal fails and is accordingly dismissed. May 11, 2009. ( Kuldip Singh ) (Hem) Judge.