IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 36 of 1998 Date of Decision: 8th August, 2008 Parma Nand Plaintiff/appellant Versus Gopal Dass and others Respondents-defendant Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the appellant: Mr. Ramakant Sharma, Advocate. For the respondents: Mr.Rajiv Jiwan, Advocate. Sanjay Karol, J. (Oral) Shri Parma Nand, appellant herein, as plaintiff filed a Suit No.116/1 of 1988 against the present respondents, defendants therein, seeking a declaration, permanent injunction and in the alternative relief of possession with respect to suit land comprising Khasra Nos. 837, 838 and 839, Khatauni No. 79, Khata No. 31 min, measuring 9 Bighas 12 Biswas, situate in Village Lakhanpur, Tehsil Sadar, District Bilaspur, H.P. (hereinafter referred to as the suit land). Whether the reporters of Local Papers are allowed to see the Judgment? 2 On the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether the suit land is jointly owned and possessed by the plaintiff and defendants No.1 and 2, as alleged? OPP 2. Whether the defendants interfered into the suit land in the manner, as alleged? OPP 3. Whether the suit in its present form is not maintainable? OPDs. 4. Whether the plaintiff is estopped from filing this suit by his own act and conduct? OPD 1 & 2. 5. Whether the plaintiff has no cause of action to file the present suit? OPD 1 & 2. 6. Whether the suit is not properly valued for the purpose of court fees and jurisdiction? If not what is its correct valuation? OPParties. 7. Whether this court has no jurisdiction to entertain and try the present suit? OPD. 8. Whether in alternative the defendants Nos. 1 and 2 have become absolute owners in possession by way of adverse possession on the grounds, as alleged? OPD 1&2. 9. Whether the suit land has been purchased by defendants No.1 and 2 3 from one of the co-sharers Shri Paras Ram deceased as alleged? If so what is its effect? OPD. 10. Whether the suit land was purchased by defendants Nos. 1 and 2 from Paras Ram deceased on different dates i.e. 17.5.1962, 25.9.1962 and 13.1.1968 for different amount of considerations, as alleged? OPD 1&2. 11. Relief.” The suit was dismissed in terms of judgment and decree dated 5.2.1990 passed by Senior Sub Judge, Bilaspur, H.P. It was held that defendants No.1 and 2 had purchased land from one of the co-sharers, namely, Shri Paras Ram on different dates 7.5.1962, 25.9.1962 and 30.1.1968 for different amounts of consideration. The said defendants accordingly were held to be owners of land including the entire suit land. Assailing the said judgment, plaintiff’s Civil Appeal No.14 of 1990 was dismissed by the lower Appellate Court with a direction that it would be open for the plaintiff to recover the deficiency in his entire share holding from Paras Ram or other co-sharers. 4 Aggrieved by the impugned judgment and decree dated 3.11.1997 passed by the learned District Judge, Bilaspur, H.P. The plaintiff’s present appeal was admitted on the following substantial questions of law:- “1. Whether the impugned judgment and decree is the result of complete misreading, misinterpretation as well as misappreciation of ext.P2, copy of mutation, Ext.PA copy of jamabandi for the year 1977-78 Ext.PB copy of Misal Haquiat and also Ext.P1. 2. Whether the impugned judgment and decree is the result of misreading, misappreciation of documents Ext.DA, mutation No.301, DB Mutation No.309, Ext.DD copy of Misal Haquiat and documents Exts. D2 to D5. 3. Whether the courts below are right in non-suiting the appellant after coming to the conclusion that the appellant may be entitled for more land and dismiss the suit solely on the ground that the said deficiency can be made “good” from the land of other co-sharers including the share of deceased Shri Paras Ram? 4. Whether the courts below are right in declining the claim of the appellant despite the fact that the appellant was recorded as co-sharer to the extent of two shares in the land in dispute and no order of the competent authority having been placed or proved on the record for 5 making an entry in favour of respondents- defendants with respect to suit land?” From the record as also the statements of witnesses Shri Paras Ram (PW-1), Nand Lal (DW-2), Jorawaru (DW-3) and Gopal Dass (DW-1) and also perusal of revenue record Ext.P1, Ext.P2, Ext.PA, Ext.PB, Ext.DA, Ext.DB, Ext.DD and Ext. D2 to Ext.D5, the following facts emerge. Plaintiff (2 shares) alongwith Shri Paras Ram (three shares) and Smt. Prem Lata (one share) were owners in possession of large chunk of land. It is not in dispute that defendants No.1 and 2 purchased 9 Bighas 12 Biswas (approximately) of land from Shri Paras Ram. Mutation No.301 Ext.DA (1962) evidences sale of 4 Bighas 5 Biswas of land in Khasra No. 488/171/1 and 519/241/1. Ext.DB (1968) evidences sale of 2 Bighas 15 Biswas of land in Khasra No. 519/214/2. Thus, the total land sold to defendants No.1 and 2 comes to 7 Bighas of land. There is no document evidencing the 3rd sale with respect to remaining 2 Bighas 7 Biswas of land on record, but however, the learned trial Court, based on the revenue documents i.e. Girdawari attested in favour of defendants No.1 and 2 during settlement, relied upon the same and came to the conclusion 6 that the entire suit land stood sold to defendants No.1 and 2. In my view, the findings of fact returned by the trial Court as also the first Appellate Court are totally contrary to record and have materially affected the rights of parties rendering the entire decision to be perverse. Land comprising Khasra numbers transferred vide Ext.DA and Ext.DB are neither disputed by the plaintiff nor are subject matter of suit. The suit land pertains to Khasra Nos. 837, 838, 839 comprising 9 Bighas 12 Biswas. Learned counsel for the appellant has stated at the Bar that even if 3rd sale of 2 Bighas 7 Biswas is held to be valid even then the plaintiff is not entitled to ownership and possession of the entire suit land. Faced with this situation, learned counsel for the respondents has not been able to show as to how and under what circumstances defendants No.1 and 2 can claim ownership with regard to the entire suit land holding comprising Khasra Nos. 837, 838 and 839. Learned counsel for the respondents has urged that from the statement of PW-1 it is evident that not only partition had taken place in the year 1944 but the parties had also been put into 7 possession of their respective shares in the year 1944-45. The contention needs to be rejected on the ground that revenue entries as noticed hereinabove do not depict the position. Be that as it may be the fact of the matter is that defendants No.1 and 2 cannot own and possess more than what was transferred to them by Shri Paras Ram. It is not in dispute that the entire share holding purchased by defendants No.1 and 2 from Shri Paras Ram was to the extent of 9 Bighas 12 Biswas. Instead of decreeing the suit with regard to excess land, the first Appellate Court, in my considered view has rightly held that shortfall in the plaintiff’s share holding can be adequately met and compensated at the time of the partition of the suit land. Defendants No.1 and 2 having purchased the land from Shri Paras Ram have stepped into his shoes as co-sharer and the land in question can be partitioned at any point of time. The findings returned by the learned lower Appellate Court in para 16 are modified to the extent that the plaintiff shall be entitled to seek partition of the suit land in accordance with law and also claim the share and possession to the extent of his share holding in the suit land. Defendants No.1 and 2 cannot claim more than what 8 could have been transferred by Shri Paras Ram. If they are aggrieved of any action of said Shri Paras Ram, it is always open for them to take recourse to such remedies as may be available to them in accordance with law. In view of statement made by the learned counsel for the appellant the substantial questions of law No.1 and 2 are not being considered and dealt with. The substantial questions of law are answered accordingly. In view of the aforesaid facts, the present appeal is allowed to the extent indicated above. The judgments and decrees passed by the Courts below are modified to the aforesaid extent. 8th August, 2008 (Sanjay Karol), (C) Judge.