IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 134 of 1997 Judgment reserved on: 31.12.2007 Date of decision: 25.2.2008. Usha Gupta ….. Appellant. Vs. Chief Secretary to the Govt. of H.P. and Ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. Raman Sethi, Advocate. For the Respondent-1 : Mr. M.L. Chauhan, Additional Advocate General, Kuldip Singh, Judge. The plaintiff is in appeal against the judgment, decree dated 5.10.1996 passed by learned District Judge, Chamba in Civil Appeal No.29/95//1989 confirming judgment, decree dated 26.9.1989 passed by learned Senior Sub Judge in Civil Suit No.100 of 1986. 2. The facts in brief are that appellant-plaintiff filed a suit for declaration and possession against respondents No.1 to 8 that she is owner in possession of land comprised in Khata Khatauni No. 3/4, khasra Nos. 99, 100, 125 and ½ share in Khata Khatauni No. 4/5, khasra Nos.115, 126 measuring 300 Sq. yards 7 Sq. feet situate at Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… Bhanjraru Pargana Tissa, Tehsil Churah, District Chamba. The appellant acquired suit property from her husband respondent No.9 vide gift deed dated 13.5.1980 Ex.PW-5/A registered on 14.5.1980. The respondent No.2 on 6.9.1985 ordered sale of the suit property for satisfying some debt of respondent No.9. Respondent No.3 in an auction on 11.6.1986 sold the suit property to respondents No.4 to 8 and mutation to this effect was also sanctioned on 19.2.1987. The respondents No.4 to 8 on the basis of wrong and illegal order of respondents No.2 and 3 have taken forcible possession of the suit property. The appellant was not bound to pay the debt of respondent No.9. The respondents No.2 and 3 could not realize the debt of respondent No.9 by selling the suit property owned by appellant. The appellant thus filed the suit. 3. The suit was contested by respondents-defendants No. 1 to 3 by filing written statement on the grounds of maintainability, valuation, cause of action. They denied that appellant is owner in possession of the suit property. It has been submitted that respondent No.9 was the owner of the suit property. An amount of Rs.49,928/- was payable by respondent No.9 to Tissa Salancha Co- operative Agriculture Service Society (for short ‘Society). The society had initiated action against respondent No.9 for realization of the amount. In order to evade the payment of debt of the society, the respondent No.9 had gifted the suit property to appellant who is none else but his wife. The gift is not binding on respondents No.1 to 3. The sale of the suit property is legal. The suit property prior to gift …3… was attached. The suit has also been contested on the ground of limitation as well as non-compliance of Section 80 CPC. 4. The respondents No.4 to 8 also contested the suit. They have taken the plea that the suit of appellant is collusive with respondent No.9. The respondents No.4 to 8 are owners in possession of the suit property. The society in order to realize its amount had initiated arbitration proceedings against respondent No.9. The arbitrator had attached the suit property and respondent No.9 illegally gifted the suit property in favour of appellant after the attachment order and therefore, gift is wrong, illegal and not binding on respondents No.4 to 8. It has been submitted by them that they have purchased the suit property on 11.6.1986 in an auction for Rs. 69935/- . The society is a necessary party. 5. The respondent No.9 also filed written statement and conceded the claim of the appellant. The learned trial Court has framed the following issues:- 1. Whether the plaintiff is owner in possession of the suit land as alleged? OPP 2. Whether the auction conducted on 11.6.1986 qua the suit property is null and void as alleged? 3. Whether the suit is not maintainable in the present form as alleged? OPD 1 to 3. 4. Whether no legal notice has been served upon the defendant Nos. 1 and before the institution of the suit as alleged? OPD 1 to 3 …4… 5. Whether the plaintiff has no cause of action against defendants No.1 to 3 as alleged ? OPD 1 to 3 6. Whether Tissa Salancha service co-operative society is a necessary party in the suit as alleged? OPD 4 & 5. 7. Whether the suit of the plaintiff is collusive with defendant No.8 as alleged? OPD 4 and 5. 8. Whether the suit is within limitation ? OPP 9. Whether the suit is competent without the prayer for possession as alleged? OPD 4 & 5. 10. Whether the suit is bad for misdiscreption of the names of the parties as alleged> OPD 4 & 5. 11. Whether proper court-fees has not been affixed as alleged? OPD 1 to 8 12. Relief. The suit was dismissed on 26.9.1989. The appellant filed appeal being RFA No.106 of 1989 in this Court against judgment, decree dated 26.9.1989. On increase of the jurisdiction of the Courts below this Court transferred the appeal on 13.3.1995 to learned District Judge, Chamba. The learned District Judge dismissed the appeal on 5.10.1996, hence this appeal. The appeal has been admitted on the following substantial questions of law:- 1. Whether an instrument/deed, by which property has been transferred, can be set aside without any challenge having been made to the same? 2. Whether before any instrument/deed of transfer of property is set aside on the ground that there is an order of attachment, it is necessary to …5… prove, that the attachment order had been communicated to the parties and had been mentioned in the revenue record at the time of the gift deed? 3. Whether the appellant/plaintiff could have been dispossessed from that building, which she had constructed on the suit land out of her own funds? 4. Whether the learned courts below has totally misread the evidence leading to total failure of justice? 6. I have heard Mr. Raman Sethi, learned counsel for the appellant. Mr. M.L. Chauhan, Additional Advocate General for respondents No.1 to 3 and Mr. Anup Rattan, Advocate appearing for respondents No.4 to 8 and gone through the record. It has been submitted on behalf of the appellant that gift deed Ex.PW-5/A has not been assailed by way of separate suit. The appellant continued to be the owner of the suit property on the basis of gift Ex.PW-5/A. The attachment order was not communicated to the parties nor attachment order was incorporated in the revenue record at the time of gift. The appellant is bonafide transferee under the gift of the suit property and no fault can be found with the gift of suit property made by respondent No.9 in favour of appellant. The appellant has constructed a building on the suit land from her own funds and she cannot be dispossessed from that building. The Courts below have totally misread the evidence on record, hence impugned judgment, decree are liable to be set aside. The learned counsel appearing on behalf of the respondents have supported the impugned judgment, …6… decree. They have submitted that respondent No.9 husband of appellant was aware of attachment order of the suit property and gift deed Ex.PW-5/A has been collusively prepared by respondent No.9 and appellant in order to evade the payment of dues to the society. The respondents No.4 to 8 are bonafide purchasers for valuable consideration of the suit property in an auction sale which was ordered by lawful authority. The suit is not maintainable. 7. Substantial questions of law No. 1 to 4 The substantial questions of law No.1 to 4 are interconnected , therefore all of them are being disposed of collectively. The trial Court has held gift Ex.PW-5/A wrong, illegal and the suit is not maintainable for want of proof of compliance of Section 80 CPC notice. The learned District Judge has dismissed the appeal of the appellant. There is no denial of the fact that suit property was owned and possessed by respondent No.9 and he executed gift of suit property in favour of appellant on 13.5.1980 which was registered on 14.5.1980 vide Ex.PW-5/A. The society initiated action against respondent No.9 for recovery of Rs.49928/-. 8. PW-7 Basant Ram has stated that in view of red ink note in jamabandi he would not have registered the gift deed. He had seen the papers which were enclosed with the gift deed which are kept in a separate file in the office. He has not brought that file in the Court as he has retired. Prem Singh Atri DW-3 ( on behalf of defendants No.1 to 3) has stated that society has filed three arbitration cases against Parkash Chand and he was their arbitrator. He attached the property of Parkash Chand on 2.5.1980. In cross- …7… examination he has stated that this order was sent to Tehsildar on 2.5.1980 vide dispatch No.1559-60/80 dated 2.5.1980. It appears the order of attachment was made under Section 74 of the H.P. Cooperative Society Act, 1968. Ex.D-1 to 3/A is the letter dated 2.5.1980 vide which Prem Singh Atri had written to Tehsildar Churah informing him that immovable property of Parkash Chand in village Bhanjraru has been attached. Ex.P-1 is the copy of jamabandi for the year 1976-77 regarding the property of Parkash Chand. On this jamabandi there is a red ink note that the land will remain with the co- operative society till payment of Rs.49928/- and it can not be transferred. The respondents No.1 to 3 have placed on record Ex.DW-1 to 3/C a copy of jamabandi for the year 1976-77 pertaining to the property of Parkash having similar note as in Ex.P-1. Ex.D-9/3 is a copy of jamabandi for the years 1976-77 of land comprised in khasra Nos.115, 126 etc. On this jamabandi there is no red ink note as in Ex.P-1 and Ex.DW-1 to 3/C. Ex.P-2 is the proclamation of sale under Section 85 of the H.P. Land Revenue Act. issued by Collector, Chamba showing therein that an amount of Rs.69,938.31/- as arrears of land revenue is outstanding against Parkash Chand and the immovable property of the Parkash Chand would be sold on 11.6.1986 for recovery of said arrears. There upon the property was sold on 11.6.1986 in an auction and was purchased by respondents No.4 to 8. It appears that arbitration proceedings were conducted under the Himachal Pradesh Co-operative Society Act, 1968 and the rules framed under the said Act. As per rule 127 of the H.P. Cooperative Society Rules 1971 any transfer of attached …8… property shall be void as against all claims enforceable under the attachment. It has come on record that suit property was attached vide order dated 2.5.1980 and attachment order was incorporated in the form of red ink note in jamabandi for the years 1976-77 Ex.P-1 which is also Ext.DW-1 to 3/A. There is no such note in Ext.D-9/3 regarding land comprised in khasra Nos. 115, 126, but it makes no difference since the property of respondent No.9 at Bhanjraru was attached as per Ext.D-1 to 3/A. The land comprised in khasra Nos. 115, 126 is part of land mentioned at serial No.2 of schedule in Ex.P- 2 proclamation of sale. There is nothing on record to show that at the time of registration of gift deed Ex.PW-5/A red ink note incorporated in jamabandi Ex.P-1 or Ex. DW-1 to 3/A was brought to the notice of Sub Registrar or not. The transfer of suit property by way of gift after the attachment order by respondent No.9 in favour of the appellant is void under Rule 127 and it does not require to be set aside separately by way of suit on behalf of the respondents No.1 to 8 as contended by learned counsel for the appellant. The gift Ex.PW-5/A otherwise appears to be collusive between respondent No.9 and appellant inasmuch as the respondent No.9 owed some amounts to the society at the time of making the gift. The respondent No.9 transferred his property by way of gift in favour of appellant his wife after attachment with the hope that after such transfer his property could not be sold for recovery of his dues. The transfer by way of gift is not bonafide. 9. The proclamation of sale was issued under Section 85 of the H.P. Land Revenue Act by Collector , Chamba vide Ex.P-2 for selling the suit property for recovery of dues as arrears of land …9… revenue. It is the case of the appellant that in fact the property was sold and therefore, under Section 82 of the H.P Land Revenue Act. The property shall be free from all encumbrances. The sale could be set aside under Section 96 of the H.P. Land Revenue Act. The Section 171 of the H.P. Land Revenue Act bars the jurisdiction of the Civil Court to go into the question of sale for recovery of arrears of land revenue except on the ground of fraud. The relevant part of Section 171 is as follows:- “(2) A Civil Court shall not exercise jurisdiction over any of the following matters namely…………………. (xv) Any claim to set aside, on any ground other than fraud, a sale for the recovery of an arrear of land revenue or any sum recoverable as an arrear of land revenue. 10. The suit property was sold as arrears of land revenue, the sale has not been questioned on the ground of fraud nor a case of fraud has been made out, therefore, Civil Court in the facts and circumstances of this case has no jurisdiction to go into the legality of sale in view of Section 171. The trial Court has recorded specific findings that the suit is bad for non-compliance of Section 80 of CPC. The appellant has placed on record notice under Section 80 C.P.C. dated 17.6.1986 Ex.P-3 but there is nothing on record to show that notice Ex.P-3 was actually sent and delivered to respondents No.1 to 3. Therefore, on this ground also suit is not maintainable. The appellant has taken the stand that she …10… constructed building on the suit property but perusal of gift deed Ex.PW-5/A would show that there was already a shop in existence. There is no worth believing evidence on record to show that in fact appellant has raised construction on the suit property, except for a few bald statements. No documentary evidence in support of expenditure incurred on the alleged construction has been proved on record. No case for interference has been made out. The substantial questions of law No.1 to 4 are decided in favour of the respondents and against the appellant. 11. No other point was urged. 12. The result of the above discussion, appeal fails and dismissed with costs. February 25, 2008. ( Kuldip Singh ) (sks) Judge.