IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.229 of 1998 Date of decision : April 6, 2010 Chhattar Singh and another …Appellants. Versus Prem Dass and another …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the Appellants : Mr. Bhupinder Gupta, Senior Advocate, with Ms Charu Gupta, Advocate. For the Respondents : Mr. Karan Singh, Advocate, for respondent No.1. Surjit Singh, J (Oral) Defendants-appellants are aggrieved by the judgment and decree dated 3rd April, 1998 of learned first Appellate Court (Court of District Judge), whereby accepting the appeal against judgment and decree dated 16th November, 1996 of learned trial Court, by which the suit of the plaintiff-respondent had been dismissed, the suit has been decreed and a decree for permanent prohibitory injunction, restraining the defendants-appellants from interfering in the possession of the plaintiff-respondent over suit land, has been passed. 2. Plaintiff-respondent Prem Dass filed a suit for declaration that he was owner in possession of land measuring 13 bighas 5 biswas, bearing Khasra Nos.116/95, Whether reporters of the local papers may be allowed to see the judgment? …2… 96,97 and 118/98, situate in village Cheola Bakanag, Tehsil Pachhad, District Sirmour, hereinafter referred to as suit land, and also for permanent prohibitory injunction, restraining the defendants-appellants from interfering with his possession over the suit land, on the strength of the wrong entries in the revenue papers. It was pleaded that late Smt. Gauri Devi used to be the owner of the suit land. She sold the same to the plaintiff, for a consideration of Rs.500/-, by an oral sale, in the year 1968. She showed the suit land to the plaintiff on the spot and agreed to get the mutation entered and attested in his favour. Lateron, she got the mutation entered and attested, sometime in the year 1968, which was subsequently reviewed and cancelled, because the same was in respect of some land other than the land sold. Gauri Devi died after some time and her estate was mutated in favour of the defendants-appellants, on the strength of a will set up by them. 3. Suit was contested by the defendants- appellants, who denied that the suit land had ever been sold by Gauri Devi to the plaintiff-respondent or that he had ever been in possession of any part of the suit land. Some preliminary issues were also raised. 4. Trial Court framed issues, based on the pleadings of the parties and came to the conclusion that the suit land had not been sold by Gauri Devi to the plaintiff- respondent and consequently dismissed the suit. …3… 5. Appeal was filed by the plaintiff-respondent in the Court of District Judge, who, on the basis of the oral evidence of the parties, concluded that the suit land had been sold by Gauri Devi to the plaintiff-respondent orally, for a consideration of Rs.500/- and possession had also been delivered to the plaintiff-respondent and ever since he had been in possession. Consequently, the suit was decreed and a decree for permanent prohibitory injunction was passed against the defendants-appellants. 6. This appeal was admitted on the following substantial questions of law: “1. When the case of the plaintiff is based on the oral sale and the entries in the revenue record do not depict the factum of such oral sale as claimed by the plaintiff in the plaint, could the plaintiff be conferred the title to the suit property by putting reliance on such oral evidence which was not only unworthy of credence and was in contradiction to the revenue record, which remains unassailed and unchallenged for the last more than 25 years? 2. Whether the suit of the plaintiff was barred by limitation on account of attestation of the Mutation in favour of the defendant- appellants holding them to be successor to the property, falling to the share of Smt. Gauri Devi? 3. Whether the findings of the learned Lower Appellate Court are not in consonance with the provisions of order 20 of the Code of Civil Procedure as the same are mutually contradictory and incoherent? 4. When the plaintiff was not proved either to have title to the suit property or in possession in part thereof, could the …4… decree of prohibitory injunction be granted in favour of the plaintiff? 5. Whether the suit property was not identified as required under law, was not the suit of the plaintiff defective for want of proper identification of the property. In the absence of proper identification and description of the property the decree could not be passed in favour of the plaintiff? 6. Whether the learned Lower Appellate Court was justified in granting a decree of injunction against the co-sharer? 7. I have heard the learned counsel for the parties and gone through the record. 8. It is plaintiff’s own case that sale had been made in his favour by Gauri Devi, sometime in the year 1967. There is available on record copy of mutation order Ex. PG. Mutation was entered on 5th December, 1967 and it was attested on 16th May, 1968. As per this mutation, land measuring 15 bighas 5 biswas, bearing Khasra Nos.104/2 and 2/3, which was earlier in the ownership and possession of Gauri Devi, had been mutated in favour of plaintiff- respondent Prem Dass, on the basis of oral sale, for a consideration of Rs.500/-. It is not the case of the plaintiff- respondent that he had purchased land from Gauri Devi twice. Therefore, the presumption is that the plaintiff purchased from Gauri Devi the land with respect to which mutation Ex. PG was attested. Oral evidence suggests that plaintiff-respondent purchased land from Gauri Devi only once. Mutation in respect of the land purchased by the …5… plaintiff-respondent was attested, which is Ex. PG. That land is not the suit land, which fact is not denied by the defendants-appellants. 9. Plaintiff’s plea is that as a matter of fact mutation Ex. PG had been entered and attested behind his back and that lateron that mutation had been reviewed, as the land to which this mutation pertained had already been gifted by Gauri Devi to one Jandu. Though it does appear from the entries in the revenue papers that mutation, copy Ex. PG, had been reviewed, the review order itself has not been placed on record to seek corroboration to plaintiff’s plea that review of mutation had taken place, on account of the land affected by this mutation having been gifted by Gauri Devi to Jandu. On the contrary, from Jamabandi for the year 1966-67, copy Ex. PC, it appears that Khasra No.97/68 measuring 9 bighas 11 biswas, was in physical possession of Gauri Devi herself and it was only the other number, i.e. Khasra No.114/104 measuring 5 bighas 14 biswas, which was shown to be in possession of Jandu, as donee, though in the ownership of Gauri Devi. 10. There is another Jamabandi, pertaining to the land, which was mutated vide Ex. PG, the same is for the year 1971-72, copy Ex. PB. Two notes, in red ink, recorded in the remarks column of this Jamabandi, make an interesting reading. The notes show that land measuring 9 bighas 11 biswas, bearing Khasra No.97/98 (old number …6… 2/3) had been mutated in favour of the Government, vide mutation No.56, attested on 23rd September, 1975, while the second Khasra No.114/104 (old number 104/2) had been mutated in favour of the plaintiff-respondent, vide mutation No.55, sanctioned on 24th May, 1975. The second note further shows that 5 bighas 14 biswas area, bearing Khasra No.114/104, had been mutated in favour of the plaintiff-respondent, on account of his having purchased the same from Gauri Devi. These entries and note belie plaintiff’s plea that mutation Ex. PG was reviewed on account of land, affected thereby, having been earlier gifted by Gauri Devi to one Jandu. 11. Aforesaid entries in the revenue papers also give a complete lie to plaintiff-respondent’s plea that it was the suit land which had been sold to him by Gauri Devi. The entries show that what was shown to the plaintiff- respondent was some other land bearing Khasra Nos.104/2 and 2/3 and mutation in respect of those numbers had also been attested in favour of the plaintiff, though the said mutation was lateron reviewed. One of those two Khasra numbers, i.e. Khasra No.114/104 (old number 104/2) is still in the ownership and possession of the plaintiff-respondent, per Jamabandi for the year 1971-72, Ex. PB. A suggestion was thrown on behalf of plaintiff-respondent to defendant Joginder Singh, who appeared as DW-1, that this 5 bighas 14 biswas land had been purchased by the plaintiff- …7… respondent from Jandu. The suggestion indicates that the plaintiff-respondent admits that he is owner in possession of this area. However, the suggestion put by the plaintiff- respondent to the defendant that he had purchased it from Jandu is not correct, because red ink entry in Ex.PB shows that he purchased it from Gauri Devi and mutation No.55 to that effect was entered and attested. 12. In view of the abovestated position, it is held that the first Appellate court was not justified in coming to the conclusion, on the basis of portions of statements of the witnesses, picked up from here and there, that the plaintiff- respondent had purchased the suit land or that he was in possession of it, especially when there is no entry in the revenue papers, indicating that the plaintiff-respondent ever occupied any portion of the suit land. On the contrary, as noticed hereinabove, the fact that plaintiff is recorded as owner in possession of Khasra No.114/104, indicates that the land sold to him by Gauri Devi was different. Consequently, substantial questions of law No.1, 3, 4, 5 and 6 are answered in favour of the defendants-appellants. 13. As regards substantial question of law No.2, limitation for the suit of the plaintiff-respondent cannot be counted from the date when Gauri Devi’s estate was mutated in favour of the defendants-appellants, for the obvious reason that mutation does not confer any title and …8… also for the reason that plaintiff-respondent was not supposed to be a party to those mutation proceedings. 14. In view of the aforesaid discussion and the findings on various substantial questions of law, appeal is accepted, judgment and decree of the first Appellate Court are set aside and that of the trial Court are restored. Appeal stands disposed of. April 6, 2010(sd) ( Surjit Singh ), J