IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.79 of 1996 Decided on: 19.4.2010 Sant Ram and others …Appellants. Versus Amaru …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. Bhupender Gupta, Senior Advocate with Mr. Neeraj Gupta, Advocate. For the Respondent: Mr. Ankush sood, Advocate. Surjit Singh, Judge (oral) This Regular Second Appeal, filed by the defendants, was admitted on the following substantial questions of law:- “1. Whether the suit of the plaintiff-respondent after a lapse of about 32 years of the sanctioning of the mutation be held to be within limitation, does the suit not hit by Article 100 of the Limitation Act? 2. Whether the learned Lower Appellate court has erroneously applied the principle of limitation to be reckoned from the date of knowledge when the said Article was not at all applicable? 3. Whether the learned lower appellate court has misconstrued and misapplied to the Whether reporters of the local papers may be allowed to see the judgment? …2… provisions or order 41 rule 22 and 33 of the Code of Civil Procedure? 4. What is the effect of the judgment rendered in RSA 385 of 1989 titled Shri Mastu and others vs. Shri Amru decided by Hon’ble High Court of Himachal Pradesh on 21.11.1996, upheld by Hon’ble Supreme Court on the rights of the parties in the present proceedings?” 2. Facts and background, relevant for the disposal of appeal, may be noticed. Their lived a man by the name of Budha. He had three sons, named Kharku, Kanahya and Bana. Kharku had a son, named Jiwanu. Kanahya had a son, named Chuhra and Bana had also a son, named Nanku. Jiwanu was issueless. He died in the year 1960. Kanahya’s son Chuhra was alive at the time of Jiwanu’s death. Bana’s son Nanku had pre-deceased him. However, Nanku’s two sons Mastu and Sant Ram, defendants herein, were alive, when Jiwanu died. 3. Budha had landed property in two villages, namely Beli Kalan and Dhana. On his death, his three sons, named above, inherited his estate in equal shares, in both the villages. Similarly, when Budha’s three sons Kharku, Kaanahya and Bana died, their estates, i.e. 1/3rd share each in the property, inherited from Budha, were inherited by their sons Jiwanu, Chuhra and Nanku. On the death of Jiwanu in the year 1960, his estate was mutated equally in favour of …3… Chuhra, father of Amru (plaintiff-respondent) and Mustu and Sant Ram (defendants-appellants). 4. A suit was filed by the defendants in respect of Jiwanu’s estate, situate in village Beli Kalan. In that case it was pleaded that Budha, during his life time, had separated Chuhra, the father of the plaintiff and, therefore, he ceased to be a member of coparcenary of Budha, and, so, on Jiwanu’s death, his property was inherited by the other coparceners, who had not been separated, namely Mastu and Sant Ram (defendants) and, thus, they inherited his entire estate. As already noticed, that suit pertained to the land situate in only one of the two villages, namely Beli Kalan. Mastu and Sant Ram lost that suit. This Court dismissed their RSA (No.385 of 1989), vide judgment dated 21.11.1996, holding that the subject matter of the suit was not the coparcenary property and that Budha and after his death his three sons, Kharku, Kanahya and Bana were only Adna Maliks and that after their death, their sons Jiwanu, chuhra and Nanku became absolute owners of the land on account of Abolition of Ahla Malkiat Act, 1954 and thus, Jiwanu was the absolute owner of the suit property and, hence, it was to go to his collaterals, irrespective of the fact whether they were members of coparcenary or not. This Court also held that the property had rightly been inherited by Chuhra, the predecessor-in-interest of Amru plaintiff and Mastu and Sant Ram defendants. …4… 5. SLP filed against the aforesaid judgment of this Court was dismissed by the Supreme Court, vide order dated 17.12.1999. 6. Suit giving rise to the present Regular Second Appeal was filed by Amru son of Chuhra in the year 1988. The subject matter of this suit is the land situate in the other village, namely Dhana. Plaintiff sought a declaratory decree that he was the absolute owner of the land of Jiwanu, situate in village Dhana, being a class-II heir of preferential degree of deceased Jiwanu. He pleaded that mutation sanctioned in respect of the half of the estate of Jiwanu, in favour of defendants Mastu and Sant Ram, was illegal and, hence, not binding upon his rights. It was also pleaded that Mastu and Sant Ram had sold the land, purportedly inherited from Jiwanu, to defendant-appellant Hukami and that on the basis of that sale, Hukami had started interfering in his possession. So, besides seeking declaration to the aforesaid effect; he prayed for issuance of permanent prohibitory injunction restraining the defendants-appellants, including Hukami, from interfering in his possession. Also, an injunction was sought that on the strength of mutation of estate of Jiwanu or the sale in favour of Hukami, defendants may not claim partition. 7. Suit was contested by the present appellants- defendants on various grounds. It was stated that the suit was barred by time, because the mutation, in respect of estate of Jiwanu, had been attested long-long back. On merits, it was stated that the defendants had become owners …5… to the extent of half share of Jiwanu, in the subject matter of the suit, by way of adverse possession. Hukami took the plea that she was a bonafide purchaser for consideration. 8. Trial court dismissed the suit, holding that it was barred by time and Hukami was a bonafide purchaser for consideration. 9. Plaintiff filed appeal in the Court of District Judge, who vide impugned judgment dated 13.12.1995 accepted the appeal and decreed the suit in the following terms: “21. ……… The suit of the plaintiff is decreed to the effect that mutuation No.202 dated 27.5.1962 is quashed. The share of Jiwanu in the land contained in Khasra No.207, 208, 209, 220 and 342 situated in village Dhana, Hadbast No.159, Pargana Plassi, Tehsil Nalagarh be mutated in the name of Chuhra and then in the name of Amroo son of Shri Chuhra, plaintiff. The entries in the Jamabandies be also corrected accordingly. The plaintiff is accordingly declared owner of 2/3 share measuring 9.05.00 bighas of the land aforesaid. The defendants are restrained from causing ouster of the plaintiff from the share of deceased Jiwanu in the suit land. The parties shall bear their own costs.” 10. I have heard the learned counsel for the parties and gone through the record. 11. During the pendency of this appeal, an application for additional evidence, moved by the defendants-appellants, for placing on record the copy of judgment passed by this Court in the earlier litigation and also an order of mutation, …6… regarding private partition, was allowed. Respondent-plaintiff was afforded an opportunity to lead evidence in rebuttal. He has chosen not to lead any evidence in rebuttal. Copy of the judgment and the copy of mutation of private partition are Exts. A-1 and A-2 respectively, on the file of this Court. 12. Substantial question of law No.1 pertains to the objection of the appellants-defendants, which they raised in the written statement, that the suit was barred by time. According to them, limitation began to run on 27.5.1962, when mutation of estate of Jiwanu was attested. Plea cannot be accepted for the simple reason that mutation does not confer any title nor does it take away any. Mutations are entered and attested to set straight the revenue record. That is the only purpose and the object of sanctioning mutation. Hence, the question is answered against the appellants. 13. Substantial question of law No.2 is also answered against the appellants, in view of the answer to substantial question of law No.1. 14. As regards substantial question of law No.3, learned first appellate Court was not right in rejecting the appellants-defendants submission, with regard to the plea of adverse possession, because they were not supposed to have challenged the finding on the issue by filing appeal, when the final verdict given by the trial Court was in their favour. 15. I have been taken through the evidence, with regard to the plea of adverse possession. Such a plea was not available to the defendants for the simple reason that they …7… were co-sharers with the plaintiff, when the suit was filed and the ingredients of plea of adverse possession, available to a co-sharer, viz. plea of ouster, had not been raised. Question is answered accordingly. 16. Coming to the last substantial question of law, formulated subsequently on 23.8.2007, Judgment dated 21.11.1996, copy Ext. A-1, cannot be said to have any effect on the merits of the present case, for the simple reason that the property, which was the subject matter of that litigation, was situate in a different village and also because the plea now raised by the plaintiff, who was defendant in that case, had not been taken in the earlier litigation nor was it dealt with or even taken note of. Plea of the plaintiff in the present litigation is based on the law of land. When Jiwanu died, Nanku, collateral of Jiwanu of equal degree, as Chuhra, was already dead and, therefore, Nanku’s sons, i.e. defendants Mastu and Sant Ram, stood excluded from inheriting the estate of Jiwanu, as per provisions of Section 8(b) read with Schedule II of Hindu Succession Act, 1956. Question is answered accordingly. 17. It is argued by the learned counsel for the appellants that the property, inherited from Jiwanu, by defendants Mastu and Sant Ram as one unit and Amaru as the second unit already stands partitioned in a private paratition between Amaru and Hukami, who is the vendee from Mastu and Sant Ram and that that partition has taken place on account of Amaru having conceded that Hukami was owner to …8… the extent of half share of Jiwanu’s estate. Argument, in my considered view, is devoid of merit. Partition has taken place during the pendency of the present litigation. Mutation order, copy Ext. A-2, no doubt suggests that partition has taken place with the consent of the plaintiff and defendant Hukami, but it is based on the existing revenue entries and not on the actual rights of the parties in the property. As already noticed, legal and factual position is that the plaintiff inherited Jiwanu’s estate to the exclusion of defendants Mastu and Sant Ram and, therefore, Hukami, who is an alienee from Mastu and Sant Ram, has no right, title or interest in the property. 18. It appears that plaintiff conceded Hukami as a co- owner with him to the extent of half share in Jiwanu’s estate, in view of the judgment of this court, in the earlier litigation, i.e. Judgment Ext. A-1. This assumption is borne out even from a reading of para No.4 of application for additional evidence, i.e. CMP No.777/2008, relevant portion of which is reproduced below:- “4. ------------------------------------------- Since respondent during the pendency of appeal asserted his share only to the extent of half of the land in question, which is in accordance with the judgment and decree passed by the Hon’ble High Court in RSA No.385 of 1989 dated 21st November, 1996. No dispute now remains to be adjudicated in the present appeal as the parties amicably acknowledging their respective shares have got the same partitioned therefore, the subsequent developments which have occurred during the …9… pendency of the present appeal deserve to be taken into consideration to decide the controversy involved in the present appeal.” 19. For the foregoing reasons, I find no merit in the present appeal. The same is, therefore, dismissed. April 19, 2010(ss) (Surjit Singh), J