IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.: 229 of 1995. Reserved on: 17.11.2008. Decided on: 25.11.2008. Chander Mani and Others. … … Appellants. Versus State of Himachal Pradesh and Others. … … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the Appellants: Mr. Bhupender Gupta, Senior Advocate with Ms. Charu Gupta, Advocate. For the Respondents: Mr. Rajinder Kishore Sharma, Senior Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General and Mr. Vikas Rathore, Deputy Advocate General. Rajiv Sharma, Judge: This regular second appeal has been preferred against the judgment and decree passed by the learned District Judge, Solan in civil appeal No.114-S/13 of 1991, dated 20.2.1995. Brief facts necessary for the adjudication of this regular second appeal are that the respondents/plaintiffs (hereinafter referred to as the plaintiffs for convenience sake) had filed a civil suit for declaration in the Whether reporters of local papers may be allowed to see the judgment? No. - 2 - Court of learned Senor Sub Judge, Solan on 22.9.1986 for setting aside the sale deed No.288 dated 14.7.1981 executed by Shri Ram Chand Verma in favour of Smt. Parma Devi and gift deed No.289 dated 14.7.1981 in favour of Chander Mani, Suraj Mani and Sansar Chand. The case set up by the plaintiffs is that defendants Shri Ram Chand Verma and Smt. Rameshwari Devi had purchased chil trees in Kunihar Forest in four lots in 1979-80 and as per terms and conditions of the agreement the defendants were liable to pay the plaintiffs/State the royalty alongwith sales tax and surcharge as per installments agreed to as detailed in the plaint. Shri Ram Chand Verma and Smt. Rameshwari Devi have failed to clear the installments and as per terms and conditions of the agreement the lots were seized and resold at the risk of defendants Shri Ram Chand Verma and Smt. Rameshwari Devi and the amount sustained as loss by the plaintiffs was recoverable from them as arrears of land revenue and after adjusting the amount a sum of Rs.3,88,059.75 had remained due from them. The plaintiffs had issued notice to the defendants, namely, Shri Ram Chand Verma and Smt. Rameshwari Devi to pay the dues and consequently Collector, Solan was requested to recover the amount as land revenue. The Collector, Solan informed the plaintiffs that defendant Shri Ram Chand Verma and Smt. Rameshwari Devi have no landed property existing in their names and recovery cannot be effected as land revenue. According to the plaintiffs as per jamabandi for the year 1977-78 Shri Ram Chand Verma was owner in possession of 51 bighas 10 biswas of land in Mauza Goyala, Tehsil Kasauli, District Solan, H.P. He had also submitted the revenue papers to the plaintiffs. He with malafide intention to evade the payment of Government dues of the lots and defraud the Government sold the land vide registered sale - 3 - deed No.288 dated 14.7.1981 in favour of Smt. Parma Devi. He also disposed of his remaining land in favour of his sons, namely, Shri Chander Mani, Suraj Mani and Sansar Chand. The plaintiffs had challenged the propriety of the transactions made by Shri Ram Chand Verma and had prayed that the sale deed and the gift deed be declared null and void. The suit was contested by the defendants. It was denied by them that any money was payable to the State Government. The trial Court decreed the suit of plaintiffs on 12.3.1991. The defendants preferred an appeal before the learned District Judge, Solan. The learned District Judge, Solan dismissed the appeal on 20.2.1995. This regular second appeal is preferred against the judgment and decree dated 20.2.1995 passed by learned District Judge. This regular second appeal was admitted on 24.7.1995 on the following substantial questions of law:- 1. Whether in suit for declaration seeking to set aside the transaction of sale and gift, is it not incumbent for courts below to give notice to the general public as well as the other creditors, if any? 2. Whether in a suit of present nature it was necessary to comply with the provisions of order 1 Rule 8 C.P.C. and for want of compliance vitiates the judgment and decrees of both the courts below? 3. Whether the present suit admittedly filed beyond the period of three years from date of transaction cold be said to be within limitation when there were neither any pleadings nor proof as to why such suit was not instituted by the plaintiffs within the prescribed period of limitation? 4. Whether it was necessary for the plaintiffs to allege the spec ific pleadings recording the fraud when the sale transactions were sought to be challenged on the ground that they were not made by defrauding the creditors? - 4 - 5. Whether the agreements on the basis of which the plaintiffs were claiming the right to recover certain amount were hit by the provisions of Article 299 of the constitution of India, therefore, affecting the maintain ability of the present suit? Mr. Bhupender Gupta, learned Senior Advocate has strenuously argued that the judgments and decrees passed by both the Courts below are not sustainable in the eyes of law. He then contended that the civil suit was not maintainable in view of Order I Rule 8 of Code of Civil Procedure, 1908. He then contended that the plaintiffs have failed to allege and prove fraud by his clients while disposing of the land by way of sale deed dated 14.7.1981 and by way of gift deed. He further contended that the suit was not within limitation and the same was not executed as per Article 299 of the Constitution of India. Mr. Rajinder Kishore Sharma, learned Senior Additional Advocate General has supported the judgments and decrees passed by both the Courts below. I have heard the learned counsel for the parties and gone through the record carefully. SUBSTANTIAL QUESTIONS OF LAW NO.1 & 2: The Court will first advert to substantial questions of law No.1 and 2 being interconnected and inter-linked. The questions raised in these two grounds have not been pleaded by the defendants in their written statement. The defendants were bound to take objections under Order 1 Rule 8 of the Code of Civil Procedure at the early stages of the civil suit. The only averment made in the written statement was that the suit was not maintainable. However, the plea as raised before this Court in regular second appeal was not raised before both the courts below. These questions cannot be treated as pure questions of law and cannot be - 5 - permitted to be raised for the first time in the regular second appeal without there being any factual basis. SUBSTANTIAL QUESTION OF LAW NO.3: Both the Courts below have found that the civil suit was filed within limitation. The agreements were executed vide Ex.PW-3/A to Ex.PW- 3/D. The sale deed is dated 14.7.1981. The gift deed is also dated 14.7.1981. It is only when after the issuance of the notice, the dues were not paid, the Collector, Solan was requested to recover the money as arrears of land revenue. Shri Ram Chand Verma had submitted the revenue papers to the plaintiffs. In the jamabandi for the year 1977-78, Shri Ram Chand Verma was shown as owner in possession of 51 bighas 10 biswas of land in Mauza Goyala, Tehsil Kasauli, District Solan, H.P. It was only through the agency of Collector, Solan that the plaintiffs came to know about the sale deed dated 14.7.1981 and gift deed dated 14.7.1981. The State had come to know about these transactions in the year 1984 only and the suit was filed on 22.9.1986. PW-3 has deposed that the plaintiffs came to know of the alleged transactions only when it was informed by the Collector, Solan during the course of recovery proceedings. Thereafter the suit has been filed within three years from the date the plaintiffs came to know about the disposal of suit land by the defendants. Thus, it is held that the suit was filed by the plaintiffs within limitation. SUBSTANTIAL QUESTION OF LAW NO.4: The plaintiffs have specifically pleaded that the sale deed No.288 dated 14.7.1981 and gift deed No.289 dated 14.7.1981 are sham transactions and these were executed only to defraud the State - 6 - Government by not paying the outstanding dues. The averment of defendant Ram Chand Verma that he had sold the land to his mother to pay the outstanding dues is unbelievable. If the mother wanted to help her son, it was not necessary for her to buy the land owned by her son. The land has been sold for a sum of Rs.7,500/-. There is no evidence on record to suggest that this amount was paid by the mother to her son for clearing his outstanding dues. Similarly, the manner in which the land has been gifted for a paltry sum of Rs.4,000/- on 14.7.1981 is also questionable. In this case also, there is no evidence to show that this money was paid and utilized. The learned Courts below have come to right conclusion that the transactions made by way of sale deed No.288 dated 14.7.1981 and gift deed No.289 dated 14.7.1981 were illegal and void and not binding on the rights of the plaintiffs to recovery the amount by sale of the land involved therein. SUBSTANTIAL QUESTION OF LAW NO.6: It is clear from the bare perusal of Ex.PW-3/A to Ex.PW-3/A that the same were signed by Shri Ram Chand Verma and the Divisional Forest Officer. The agreements are in conformity with Article 299 of the Constitution of India. These agreements were binding between the parties. Moreover, this question has neither been pleaded nor argued before both the Courts below. In view of the above discussion, there is no merit in this regular second appeal and the same is accordingly dismissed. No order as to costs. November 25, 2008. (Rajiv Sharma) (sck). Judge.