IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.370 of 1996 Date of decision : May 20, 2010 Lachhman Singh and others …Appellants. Versus Jai Chand (Dead), through LRS and others…Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. Karan Singh Kanwar, Advocate. For the Respondents : Mr. Bhupinder Gupta, Senior Advocate, with Ms Charu Gupta, Advocate, for respondents No.2, 3, 5 to 8 and 9(a) to 9(d). Mr. Rakesh Bansal, vice Mr. Ashok Tyagi, Advocate, for respondents No.4(a) & 4(b). Surjit Singh, J (Oral) Plaintiffs-appellants have appealed against the judgment dated 14th October, 1996 of learned first Appellate Court, whereby dismissing the appeal of the plaintiffs-appellants, decree dated 6th September, 1995, dismissing the suit of the plaintiffs-appellants, passed by the trial Court, has been affirmed. 2. Plaintiffs filed a suit seeking declaration that they were owners in possession of two bighas area, out of land bearing Khasra No.445/416 (old Khasra No.26), having purchased that area through an oral sale on 20th January, Whether reporters of the local papers may be allowed to see the judgment? …2… 1970. It was alleged that the defendants-respondents No.5 to 9 were trying to illegally interfere in their possession, claiming that they had purchased the land from defendants- respondents No.1 to 4, against two sale deeds, dated 18th December, 1974 and 29th October, 1975, Ex. PC and Ex. PD, respectively. 3. Suit was contested by defendants-respondents No.5 to 9, as also by defendant-respondent No.3. It was alleged that vide sale deeds Ex. PC and Ex. PD, defendants No.5 to 9 had purchased land from defendants No.1 to 4 and they were in possession of the land so purchased by them. It was denied that the plaintiffs had purchased two bighas land in the year 1970, as alleged by them, through an oral sale and price was paid against receipt Ex. PA. 4. Various issues were framed by the trial Court. Parties went to trial. Trial Court held that no sale, as alleged by the plaintiffs, had taken place in their favour and consequently the suit was dismissed. Learned District Judge has dismissed the appeal, vide impugned judgment and decree. 5. Appeal was admitted on the following substantial questions of law: “1. Whether learned First Appellate Curt has misconstrued, misinterpreted Ext. PA receipt dated 20.1.70, Ext. PC sale deed dated 29.10.75 and Ext.PD sale deed dated 16/18.12.75 and Ext. PF Jamabandi 1967-68, Ext.PG Jamabandi 1962-63 and other documentary evidence on record? …3… 2. Whether respondents No.5 to 9 are benafide purchasers of land vide sale deeds Ext. PC and Ext. PD to the extent of 2 bighas which was already sold to Basti Ram, for which, receipt Ext.PA was already issued by respondents No.1 to 4. 3. Whether respondents 5 to 9 have purchased land measuring 7.12 Bighas or 6.12 bighas vide sale deeds Ext. PC, Ext.PD or by any other mode? 4. Whether learned District Judge has erred in not identifying by appointing Local Commissioner or by directing the parties to identify land atleast to the extent of one Bigha which is not purchased by respondents 5 to 9 and will remain with appellants even if respondents 5 to 9 are held to be bonafide purchasers of the land vide sale deeds Ext. PC and Ext. PD?” 6. I have heard the learned counsel for the appellants as also the learned counsel for the respondents and gone through the record. 7. A perusal of the record of the trial Court shows that the total area of old Khasra No.26 was quite large. That khasra number had been broken into several min numbers. Two such min numbers together measured 16 bighas 2 biswas, as per Jamabandi for the year 1967-68 Ex. PF. These two min numbers had different Khataunis, i.e. Nos.89 and 90. Area of Khatauni No.90 Khasra No.416/26 min was 6 bighas 2 biswas. It was in possession of the predecessor of the plaintiffs as a tenant, on payment of rent. Receipt Ex. PA, upon which reliance is placed by the plaintiffs, in support of their claim that they had purchased two bighas area, shows that the sold two bighas …4… area formed part of the land already occupied by the plaintiffs as tenants. Therefore, in the absence of any revenue papers, presumption is that this two bighas area claimed by the plaintiffs to have been purchased by them against receipt Ex. PA is part of this 6 bighas 2 biswas area, entered against Khatauni No.90 in Jamabandi for the year 1967-68 Ex. PF. 8. Defendants No.5 to 9 purchased from defendants No.1 to 4, the original owners of the land, 4 bighas 14 biswas area, shown by Khasra No.445/416/2 vide sale deed dated 29th October, 1975, copy Ex. PC, and 1 bigha 18 biswas area, forming 1/4th share of Khasra No.445/416 vide sale deed executed on 16th December, 1974, copy Ex. PD. Now, the total area purchased against the aforesaid two sale deeds by defendants No.5 to 9 comes to 6 bighas 12 biswas. They are being shown as owners in possession of only 6 bighas 12 biswas area, which is shown by Khasra No.472/445 (new) in Jamabandi Ex. DD for the year 1987-88. 9. Learned counsel for the appellants submits that defendants No.5 to 9 are claiming to be in possession of one bigha more area, i.e. one bigha area in excess of 6 bighas 12 biswas. Learned counsel for the said defendants denies this and submits that defendants No.5 to 9 are in possession of only 6 bighas 12 biswas areas shown in Jamabandi Ex. DD. In view of this submission of the …5… learned counsel for defendants No.5 to 9, contention raised by the plaintiffs’ counsel cannot be accepted. 10. Plaintiffs-appellants have not given the description of two bighas area purchased by them orally, on payment of price against receipt Ex. PA. As shown hereinabove what they purchased orally was two bighas area, out of 6 bighas 2 biswas area, which was under their tenancy, as per entry in the Jamabandi for the year 1967- 68, copy Ex. PF. It is not their case that they are now not in possession of that that 6 bighas 2 biswas area, which they once held as tenants. Also, it appears from the revenue entries tendered in evidence by the parties that the proprietary rights had been conferred upon the plaintiffs, in respect of the area held by them, as tenants. There is a note, in red ink, on Jamabandi Ex. PF for the year 1967-68 that proprietary rights had been conferred upon plaintiffs’ predecessor, in respect of 5 bighas 9 biswas area, vide mutation No.739. 11. In view of the above discussion, it cannot be said that the first Appellate Court has misconstrued or misread the documents. Land, which has been purchased by defendants No.5 to 9, is different from the land allegedly purchased by the plaintiffs. They have purchased 6 bighas 12 biswas area against sale deeds Ex. PC and PD and that area is shown in Jamabandi for the year 1987-88, copy Ex. DD, vide Khasra No.472/445, Khata No.6 min, Khatauni …6… No.6 and they are owners in possession of only this much area. 12. In view of the abovestated position, there was no need for appointment of any Local Commissioner. Even otherwise, this was not a fit case for appointment of Local Commissioner, for identification of the land claimed by the plaintiffs-appellants to have been purchased against receipt Ex. PA, because they did not even care to give description of the land so purchased by them. Substantial questions of law, on which the appeal was admitted, are answered in line with the aforesaid findings and discussion and appeal is dismissed. May 20, 2010(sd) ( Surjit Singh ), J