IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 527 of 2001 Reserved on: 5.7.2011 Date of decision : 7.7.2011. Kamal Kant and others …Appellants. Versus Kulwant and others …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 Yes. For the Appellants: Mr. Ashok Sood, Advocate. For the respondents: Mr. Ramakant Sharma, Advocate. Deepak Gupta, J. 1. This Regular Second Appeal was admitted on the following substantial questions of law:- 1. Whether Consolidation Authorities have no power or jurisdiction to confer exclusive title of suit property on the father of the appellants during consolidation proceedings under Consolidation Law? 2. Whether the writing Ext.PW-1/A required to be executed on non-judicial stamps and compulsory registration? 3. Whether suit for possession has to be filed within three years from the date execution of Ext.PW-1/A or 12 years under Limitation Act? 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes. 2 2. Briefly stated the facts of the case are that original plaintiff Shankar filed a suit claiming that he is owner of land bearing Khasra No. 132 measuring 1-12 bighas. On this land he has a residential house, cow shed and kitchen. The defendants are also in possession of half partition of the residential house, cow shed and kitchen. The other half portion is in possession of the plaintiff. The plaintiff alleged that the defendants are in permissive possession of the house of the suit property and the possession of the same was handed over to the defendants on 20.12.1987 because defendants had no accommodation to live in. The defendants had agreed that they would retain the possession till they built their own house and at the most for a period of one year. The plaintiff had agreed to pay Rs.1800/- to the defendants on account of their surrendering the possession of the aforesaid premises. The plaintiff is willing to pay this amount but the defendants did not hand over the possession of the suit property. Hence, the suit. 3. According to the defendants, the suit property is joint property and inherited from their common 3 ancestor Shri Durga. Since it is a joint property, the plaintiff cannot claim possession of half of the land till partition takes place. 4. A number of issues were framed in the suit and the learned trial Court came to the conclusion that the evidence on record showed that during consolidation proceedings a partition had taken place when the land comprised in Khasra No. 132 was allotted to the plaintiff. Thereafter, a writing Ext.PW-1/A was executed between the parties whereby the defendants had agreed that they would construct their own house and would surrender the possession of the premises in their possession within one year. The learned trial Court came to the conclusion that the plaintiff was owner of the suit property and entitled to possession thereof and therefore, decreed the suit. 5. The defendants filed an appeal which was allowed by the learned Additional District Judge, Solan. The learned Additional District Judge held that no title to the suit property passed in favour of the plaintiff on the basis of the document Ext.PW- 1/A since it was not a registered document. 4 According to him this document required registration. The learned lower Appellate Court also held that the plaintiff had failed to prove his title or exclusive ownership of the suit land and came to the conclusion that no reliance could be placed on the revenue record which came into existence after consolidation proceedings took place in the year 1960-61. The learned Additional District Judge was of the view that the consolidation authorities were not competent to divide the superstructure. He accordingly held that no partition had taken place and held that the suit itself is not maintainable. He further went on to hold that no suit could lie without impleading the widow and daughter of Durga as party to the suit. He also held that the suit was not filed within limitation since it was not filed within three years of execution of the writing Ext.PW-1/A dated 20.12.1987. 6. The first question which arises is, what is the power vested in the authorities under the H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971. The learned lower Appellate Court held that the consolidation parties 5 had no authority to partition the land or property without making reference to any provisions of the Act. The Act in question has been enacted to provide for consolidation of agricultural holdings and preventing the fragmentation of agricultural holdings. Section 25 of the Act empowers the Consolidation Officer to partition the land between joint owners of the land in accordance with the shares of each owner. Section 31 provides that the Consolidation Officer shall cause to be prepared a new record of rights in accordance with the provisions contained in the H.P. Land Revenue Act and other related Acts. Section 35 reads as follows:- “Rights after consolidation – Subject to the provisions of section 24 and 25, and with effect from the date on which a tenure holder, in pursuance of the provisions of section 32 enters into possession of the plots allotted to him, his rights, title and interest in his original holdings shall be extinguished and he shall have the same rights, title and interest subject to modification if any, specified in the final consolidation scheme in the plots allotted to him thereunder.” This clearly envisages that from the date on which possession is entered into on the plot allotted 6 to him, the rights of the person in the original plot shall cease to exist and has full rights in the plot allotted to him. 7. Section 44 reads as follows:- “No instrument necessary to effect transfer – Notwithstanding anything contained in any law for the time being in force – (a) no instrument in writing shall be necessary in order to give effect to a transfer involved in carrying out any scheme of consolidation of holdings; and (b) no instrument, if executed, shall require registration.” 8. It basically provides that a transfer made during consolidation is not necessary to be in writing and the instrument does not require registration. 9. Coming to the facts of the present case, there is no dispute that the writing Ext.PW-1/A was entered into between the parties. It is also not disputed that the property in question was earlier joint property of both the parties. The plaintiff placed on record copy of the Jamabandi for the year 1958-59 which shows that Durga, predecessor- in-interest of the defendants and Shankar the original plaintiff, were in possession of land 7 measuring 1-8 bighas comprised in Khasra No. 146, 148 and 183 in equal shares. 10. Ext.P-2 is the Misal haqiyat for the year 1962- 63 and it shows that original plaintiff Sankar was in possession of khasra No. 132 measuring 1-12 bighas. This khasra number has been carved out from Khasra No. 146, 147, 148 and 149/2. Ext.P-3 is the Jamabandi showing Durga to be in possession of 10 biswas of land comprised in Khasra No. 158, which previously comprised of Khasra Nos. 183 and 186. Thus khasra numbers 146, 148 and 183 which were originally jointly owned have been divided and alongwith other land differently given to Shankar and Durga. Both these jamabandies also contain a note that vide mutation No. 329 the parties relinquished their rights and vide mutation No. 327 the land was partitioned. No doubt, the order of partition has not been produced on record but the misal haqiyat which was entered immediately after the consolidation proceedings clearly indicates that some partition had taken place. In this partition Khasra No. 132 was allotted to Shankar. It is apparent that over khasra No. 132 there was a 8 house which was in joint possession of both the parties. This led to the agreement dated 20.12.1987. 11. A perusal of the agreement dated 20.12.1987 clearly shows that no rights in immoveable property were transferred by this agreement. It is more than apparent that the defendants agreed by this agreement to surrender their possession in the jointly held property which stood on Khasra No. 132, which had fallen to the share of Shankar. They were to raise a fresh construction and Shankar not only gave them land for raising this construction but also agreed to pay them Rs.1800/- in lieu thereof. The learned lower Appellate Court gravely erred in holding that the title in immoveable property was being transferred by this agreement. The defendants on account of the partition had no further right in the house which stood on Khasra No. 132 allotted to the plaintiff in consolidation proceedings. Shankar of his own free will accepted to compensate them by giving them land and permitted them to reside in the old house for one year till they constructed their own house. 9 12. The statement of defendant Kulwant Singh, who appeared as DW-1, settles the matter. According to him the land was joint but in cross- examination he admitted that when consolidation proceedings took place in the year 1960-61 his father was residing in upper Mahasu. He also states that Shankar had told them that he (Shankar) and the father of the defendants, had entered into a family settlement. This witness also admits his signature on the document Ext.PW-1/A. He also clearly admitted that the defendants had constructed a new house in a portion of the land comprised in Khasra No. 132 with the permission of Shankar. It is thus apparent that Shankar permitted the defendants, who were the sons of his real brother, to raise construction on a portion of the land which had fallen to his share in consolidation proceedings and also agreed to compensate them by paying Rs.1800/-. This was not the price of the land but was the compensation for shifting from one house to another and raising new construction. 10 13. From the aforesaid facts, it is more than apparent that in consolidation proceedings the joint holdings of Durga and Shankar were partitioned. Durga, during his life time, never challenged such partition and accepted the same. The order of consolidation on the basis of which mutations were entered was not challenged by Durga or the defendants. Thus the plaintiff was the owner of the land but he, however, permitted the defendants, who were the nephews, to raise construction of new house on the land falling to his share on their agreeing to vacate the old house. 14. In view of the above discussion, the question No.1 is answered by holding that the consolidation authorities have the power and jurisdiction to confer exclusive title during consolidation proceedings. Question No.2 is answered by holding that writing Ext.PW-1/A was not required to be registered since no title passed on account of these documents. As far as the question No.3 is concerned since the suit is based on title, the limitation would not be of three years as held by the lower Appellate Court. 11 15. In view of the above discussion, the appeal is allowed. The judgement and decree of the learned lower Appellate Court is set-aside and that of the learned trial Court is restored. It is made clear that in view of the fact that the defendants have managed to stay in possession of this property for such a long time, they shall not be entitled to recover Rs.1800/- from the plaintiff. No costs. 7th July, 2011 ( Deepak Gupta ) ™ Judge.