IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 358 of 2000. Judgment reserved on :20.5.2010 Date of Decision : 23.7.2010 Doom Singh alias Doom and others. …Appellants. Versus Udham Singh and others. ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Appellants : Mr.Subhash Sharma , Advocate. For the respondents : Mr. B.K.Malhotra, Advocate for respondents No.1 to 7. Kuldip Singh , Judge The reversal of judgment dated 31.10.1996 passed by the learned Sub Judge 1st Class, Court No.2, Mandi in Civil Suit No. 117 of 1993 by learned District Judge, Mandi on 27.5.2000 in Civil Appeal No. 107 of 1996 has been assailed by the appellants who were plaintiffs. 2. The facts, in brief, according to the appellants are that the suit land was earlier owned by Nandu and Brestu and was in possession of Doom Singh appellant No.1, Ram Singh predecessor- in-interest of respondents No. 1 to 8, Kapoor Singh predecessor-in- interest of appellants No.2 and 3 and Puran Chand predecessor-in- interest of proforma respondents No.9 and 10 as non-occupancy tenants in equal shares. Doom Singh, Ram Singh, Kapoor Singh 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 and Puran Chand were real brothers. At the time of settlement operation in the year 1961-62 Doom Singh and Puran Chand were in Government service and used to remain at the respective places of their postings. 3. It has been alleged that Kapoor Singh was a simpleton and as such Ram Singh alone was having control over the property, though they were cultivating the land in different villages as per family arrangement. The land in question was in possession of the parties as co-tenants including other land under Nanda and Brestu. In the settlement held in 1961-62 both landlords and tenants came to an agreement to surrender/relinquish tenancy rights and the land owners agreed to surrender their ownership , rights qua the suit land equally to the parties. Ram Singh being shrewd and clever got the suit land entered in his own name, whereas the entire suit land was in joint possession of the parties as tenants and thereafter as owners. The mutation No. 84 was wrongly attested behind the back of appellant No.1 and predecessor-in-interest of appellants No.2 and 3. Their presence has been marked in mutation No. 84 which is wrong, illegal and unwarranted. Kapoor Singh and Puran Chand and appellant No.1 were not present on 13.7.1962, therefore, alleged admission of Puran Chand and Kapoor Singh regarding cultivation of Ram Singh does not arise. The parties are / were in possession as co-sharers of their respective shares. 4. It has been alleged that during consolidation operation it was revealed that mutation No. 84 was wrongly sanctioned in favour of Ram Singh though he had been cultivating the suit land as co- sharer on behalf of all co-sharers and as such, his possession was 3 nothing more than that of a co-sharer. The deletion of name of appellants and proforma respondents from the revenue record is wrong which deserves to be rectified. In these circumstances, the suit was filed seeking declaration to the effect that the entries qua the suit land showing Ram Singh predecessor-in-interest of respondents No.1 to 8 as exclusive owner in possession are illegal and the suit land be declared as jointly owned and possessed by the parties in accordance with their respective shares. 5. The suit was contested by Ram Singh predecessor-in- interest of respondents No.1 to 8 by filing written statement in which he took objections of jurisdiction of the Civil Court to try the suit, estoppel, limitation and maintainability. It was denied that the suit land was in possession of appellant No.1 and predecessor-in-interest of other appellants and proforma respondents. He pleaded his exclusive possession as tenant under the landlords. The Government service of appellant No.1 and Puran Chand was not denied but it was pleaded that they were posted in Mandi District. According to Ram Singh all the brothers had separated before the settlement operation and they were present during the settlement operation. The land owners and Ram Singh had entered into a compromise and as such, he surrendered the right of occupancy qua some of the land in favour of the landlords and in lieu thereof, the landlords got awarded the proprietary rights of the suit land in his favour . It was denied that he got the mutation No. 84 attested behind the back of appellant No.1 and predecessor-in-interest of appellants No. 2 and 3. The land holdings of the parties were partitioned many years prior to settlement operation. The suit land was allotted to Ram Singh 4 and, therefore, he was independently cultivating the suit land to the exclusion of others. The other brothers of Ram Singh gave their consent for attestation of mutation No. 84. He also took the plea of adverse possession. 6. On the pleadings of the parties, the following issues were framed:- 1. Whether the parties are joint owners in possession of the suit land and the plaintiffs are entitled to the declaration as prayed? OPP. 2. Whether this Court has no jurisdiction to try present suit.? OPD 3. Whether the plaintiffs are estopped by their acts and conduct to file the present suit ? OPD 4. Whether the suit is within limitation ? OPP 5. Whether the suit is not maintainable ? OPD 6. Whether the defendants are in adverse possession of the suit land? OPD 7. Relief. The issues No.1 and 4 were answered in affirmative, whereas issues No.2, 3, 5 and 6 were answered in negative and the suit was decreed on 31.10.1996. In appeal, the learned District Judge on 27.5.2000 reversed the judgment, decree dated 31.10.1996 of the trial Court and dismissed the suit, hence second appeal which has been admitted on the following substantial questions of law:- 1. Whether the Ld. 1st Appellate Court is justified in holding that Doom Singh, plaintiff was given an opportunity of being heard by the Tehsildar while deciding the mutation No. 84 on 13th July, 1962 ? 2. Whether the parties were co-sharers of land in dispute, whether the Ld. 1st Appellate Court is justified in holding 5 that Ram Singh alone was cultivating the land in dispute, as such he was the sole owner ? 3. Whether the Ld. 1st Appellate Court is justified in ignoring and discarding the statement of PW-2 Shri Nanda Singh who was the previous owner of land in dispute? 7. I have heard Mr. Subhash Sharma, learned counsel for the appellants and Mr. B.K.Malhotra, learned counsel for respondents No.1 to 7 and have also gone through the record. On behalf of the appellants, it has been submitted that the learned District Judge has erred in returning the finding that appellant No.1 was heard at the time of attestation of mutation No. 84 on 13.7.1962, the parties were co-sharers of the suit land, hence the findings of the learned District Judge that Ram Singh alone was cultivating the suit land as he was sole owner, are wrong. The statement of PW-2 Nanda Singh previous owner of the land in dispute has been ignored by the learned lower Appellate Court. The impugned judgment, decree are not sustainable. Per contra, the learned counsel for the respondents No.1 to 7 has supported the impugned judgment, decree and has prayed for dismissal of the appeal. 8. The substantial questions of law No. 1 to 3 are inter- connected and can be dealt with collectively, hence all the substantial questions of law No.1 to 3 are taken up collectively for disposal. PW- 1 Doom Singh has stated that land in dispute is 6 ½ bighas which came to them in succession from their father Haru. It was tenancy land owned by Nanda and Brestu. They filed an application for acquisition of proprietary rights which was compromised, some land was to be left by them to the owners and the land in dispute was 6 given by owners to them in the year 1961. In cross-examination, he has stated that since 1960 all four brothers in all respect have separated. The suit land is in village Ghera where he has no house nor Puran Chand and Kapoor Singh had any house there. He has land under cultivation at Mashwad, Manchala and Gadal. He had not cultivated land at village Ghera after separation in the year 1960. PW-2 Nanda Singh has stated that he and Brestu were the owners of the land and their tenant was Haru. After his death, Puran, Ram Singh, Kapura and Doom Singh cultivated the land. The proceedings of acquiring proprietary rights had taken place prior to settlement. They had compromised the matter and the suit land was left in favour of Ram Singh, then said in favour of all brothers. Only he and Ram Singh were present at the time of attestation of mutation. In cross- examination, he has stated that three brothers had unanimity regarding the land left by them to the landlords. He has denied that Doom Singh and Puran Chand were present at the time of attestation of mutation. 9. Ex.PD indicates that on 6.2.1962 mutation No. 84 was taken up by Assistant Collector in presence of Nanda, Brestu owners and Ram Singh tenant. It was ordered to be taken up in presence of Puran, Kapuru and Doom. The mutation No. 84 was taken up on 13.7.1962 by Assistant Collector in presence of Puran, Kapuru and it was reported that Doom was on training. Puran etc. stated that they had left the cultivation, Ram Singh was cultivating the land. Therefore, in these circumstances, the mutation was attested in favour of Ram Singh. It has been submitted on behalf of the appellants that mutation No. 84 was wrongly attested exclusively in 7 favour of Ram Singh, it should have been attested in favour of all the brothers. The error committed while attesting the mutation in favour of Ram Singh continued in the later revenue record which was detected at the time of consolidation. 10. The appellants in para 6 of the plaint have pleaded that the land situated in village Maswad had already been partitioned amongst the parties in accordance with law but the land situated in village Ghera was illegally recorded since the year 1962 on the basis of Mutation No. 84. There is substance in the case of respondents No.1 to 8 that Ram Singh their predecessor-in-interest had cultivated the suit land exclusively. It emerges from the statement of PW-1 that the parties had land at Maswad, Manchala, Gadal and Ghera. The four brothers separated in the year 1960. Doom Singh, Puran Chand and Kapoor Singh had no house at Ghera. 11. The appellants have admitted that the landlords have left some land to them. The question is whether the suit land was exclusively left to Ram Singh or in favour of all the four brothers. PW-2 Nanda Singh is one of the landlords, he has stated that the suit land was left in favour of Ram Singh, but lateron said that it was left in favour of all four brothers. The subsequent statement of Nanda Singh that the land was left in favour of all four brothers is after thought. This is clear from the fact that Nanda and Brestu on 6.2.1962 during the proceedings of attestation of mutation No. 84 have stated that they have left the land in favour of Ram Singh. The appellants have not assailed the proceedings dated 6.2.1962 of mutation No. 84. The appellants have assailed the order dated 13.7.1962 on mutation No. 84 Ex.PD. 8 12. PW-1 Doom Singh has not stated in his statement that Puran and Kapuru were not present on 13.7.1962 at the time of attestation of mutation No. 84. According to the appellants they were joint tenants, in these circumstances, naturally they were having common interest. Puran and Kapuru made the statement against their own interest which is reflected in the order dated 13.7.1962. It is not the case of the appellants that Puran and Kapuru colluded with Ram Singh. Once the appellants have taken the plea of joint tenancy, therefore, it can be safely inferred that Puran and Kapuru also represented Doom Singh at the time of attestation of mutation No. 84 on 13.7.1962 even though Doom Singh was not physically present before the Assistant Collector on 13.7.1962. The appellants remained silent for years after the attestation of mutation No. 84 on 13.7.1962. Therefore, it can be safely inferred that appellants accepted the representation made by Puran and Kapuru at the time of attestation of mutation No. 84 on 13.7.1962. The landlords and all four brothers agreed that the mutation of ownership be attested in favour of Ram Singh alone who was cultivating the suit land. In these circumstances, the attestation of mutation No. 84 on 13.7.1962 cannot be faulted simply on the ground that Doom Singh was not physically present at the time of attestation of mutation. The statement of PW-2 Nanda Singh supports the case of Ram Singh when he has stated that land was left in favour of Ram Singh. 13. In Vinay Krishna v. Keshav Chandra and another AIR 1993 SC 957 , it has been held that in that case the plaintiff did not choose to amend the plaint. She was not in exclusive possession because admittedly Keshav Chandra and Jagdish Chandra were in 9 possession. There were also other tenants in occupation. In such an event the relief of possession ought to have been asked for. The failure to do so undoubtedly bars the discretion of the Court in granting decree for declaration. In the present case also the relief of possession as consequential relief has not been prayed. Therefore, discretion of the court to grant declaration as prayed by the appellants is barred. The appellants had filed the suit for declaration that they may be declared in joint ownership and possession. On facts, it has been found that Ram Singh and after him respondents No.1 to 8 are in possession of the suit land. Therefore, in absence of consequential relief of possession, the suit is not maintainable for declaration of ownership and possession. The learned District Judge has rightly appreciated the material on record. The view taken by the learned District Judge emerges from the material placed on record. There is no perversity in the impugned judgment, decree. The substantial questions of law No. 1 to 3 are decided against the appellants. 14. In view of the above discussion, the appeal is liable to be dismissed and is accordingly dismissed with no order as to costs. ( Kuldip Singh ) July 23, 2010. Judge. (GR)