IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA. No.: 61 of 2008. Reserved on: 04.01.2011. Decided on: 21.02.2011. __________________________________________________________ Pannu Ram and another. … Appellants. Versus Chander Kala and another. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the Appellants : Mr. Rahul Mahajan, Advocate. For the Respondents : None for respondent No.1. Ms. Kanta Thakur, Advocate vice Mr. Rajesh Mandhotra, Advocate for respondent No.2. Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree dated 6th November, 2007 passed by the learned Additional District Judge, Mandi camp at Karsog in civil appeal No.91 of 2005. 2. Material facts necessary for adjudication of this regular second appeal are that the appellants/plaintiffs (hereinafter referred to as “the plaintiffs” for convenience sake) filed a suit for declaration and permanent prohibitory injunction against the defendants/respondents 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. - 2 - (hereinafter referred to as “the defendants” for convenience sake). Plaintiffs’ father Shri Solia and defendant No.1 Dayalu were real brothers and they were recorded joint owners in possession of the land comprised in Khewat No.55 min, Khatauni No.77, Khasra Nos. 220 to 227, 244 to 251 and 253, measuring 18-1-16 bighas, situate in Mauja Jachh/539, Tehsil Karsog, District Mandi as per revenue entries in the jamabandi for the year 2000-2001. The land was inherited by the plaintiffs after the death of Solia. It was further asserted in the plaint that the entire suit land was acquired by Solia, father of the plaintiffs by paying the consideration amount and other expenses and the mutation of half share of the suit land was attested in the name of Dayalu, defendant No.1. Defendant No.1, Dayalu had assured to pay ½ share of the expenditure incurred by Solia. Possession of the suit land was never delivered to defendant No.1 nor did the defendant No.1 pay the half share of the consideration incurred by Solia. They were coming in possession of the suit land to the complete ouster of defendant, Dayalu peacefully, openly and to the knowledge of Dayalu and thus they have become owners of the share of Dayalu in the suit land on 27.12.1992. However, defendant No.1, Dayalu, without having any right, title or interest in the suit land illegally sold ½ share of the suit land vide sale deed No.268 dated 5.4.2004 in favour of respondent-defendant No.2 (hereinafter referred to as “defendant No.2” for convenience sake). The plaintiffs came to know about the illegal sale deed in the month of July, 2004 and they opposed the attestation of mutation before the Naib Tehsildar. It was in these circumstances that the suit was filed for declaration that they have become owners in possession of suit land by way of adverse possession and sale deed No.268 dated 5.4.2004 was wrong, illegal, null and void - 3 - with a consequential relief of permanent prohibitory injunction against the defendants. The suit was contested by the defendants. Defendant No.1 has denied that he was completely ousted from the suit land. He had denied that the plaintiffs had become owners of the suit land by way of adverse possession. He has further asserted that since he was joint owner in possession of ½ share of suit land, therefore, he legally sold the same in favour of defendant No.2, Shri Dharam Dass vide sale deed No.268 dated 5.4.2004 and possession was also delivered to defendant No.2. Defendant No.2 asserted that after making enquiries from the revenue record, defendant No.1 was found to be recorded as joint owner in possession to the extent of ½ share of the suit land, therefore, he purchased ½ share of defendant No.1 vide sale deed dated 5.4.2004 for a consideration of ` 1,45,000/-. The plaintiffs filed replication and they have reiterated and reasserted their own case. The trial Court framed the issues on 5.3.2005. The suit was dismissed by the trial Court on 28.10.2005. Plaintiffs preferred an appeal before the learned Additional District Judge, Mandi, camp at Karsog. He dismissed the same on 6.11.2007. Hence, this regular second appeal. 3. Notices were issued to the respondents on 1.3.2008. During the pendency of this appeal CMP(M) No.1108 of 2008 was filed for setting aside abatement and bringing on record the legal representatives of respondent No.1, who had died on 3.7.2008. The application was allowed by this Court on 30.11.2009. Respondents were duly served as per report of the postal authorities. No body has put in appearance on behalf of respondent No.1. Ms. Kanta Thakur, Advocate has appeared vice Mr. Rajesh Mandhotra, learned counsel for respondent No.2, Dharam Dass. - 4 - 4. Mr. Rahul Mahajan, learned counsel for the appellants has strenuously argued that both the Courts below have not taken into consideration the well settled principles of law while passing the judgments and decrees. According to him, the learned Courts below have misread the evidence oral as well as documentary. 5. Ms. Kanta Thakur, Advocate appearing vice Mr. Rajesh Mandhotra, learned counsel for defendant No.2 has supported the judgments and decrees passed by both the courts below. 6. I have heard the learned counsel for the parties and gone through the pleadings of the parties carefully. 7. Plaintiff No.1 has appeared as PW-1. According to him, his father, Solia had purchased the suit land from Mangat Ram, Tara Chand, Kaul Ram and the entire sale consideration was paid by Solia. But the mutation of the suit land was also attested in favour of defendant No.1, whereas, the possession of the suit land remained with Solia and defendant No.1 never remained in possession of the suit land. The plaintiffs and Solia had also planted apple plants and other pear plants on the suit land. He further deposed that the plaintiffs have become owners of the suit land and defendant No.1 had illegally sold ½ share of the suit land in favour of defendant No.2. PW-2 is Shri Balam Ram. He has deposed that the suit land was purchased by Solia from Mangat Ram, Tara Chand, Kaul Ram for ` 1,45,000/- during settlement. According to him, the suit land was coming in possession of Solia and his sons and they had also planted apple and pear plants in an area of 5- 7 bighas of suit land. 8. DW-1, Sauju Ram is son-in-law of defendant No.1. He is General Power of Attorney of defendant, Dayalu. According to him, Solia - 5 - and Dayalu were already owners of some of the suit land and they were also tenants of some of the suit land and proprietary rights were conferred on them. He also deposed that before selling the suit land to defendant No.2, Dayalu had asked the plaintiffs and Solia to purchase the suit land but they declined to purchase the suit land and thereafter Dayalu sold the suit land in favour of defendant No.2 and possession was also delivered to him. Defendant No.2 has appeared as DW-2. According to him, when Dayalu offered to sell the suit land to him, he told Dayalu that he should offer sale of suit land to the plaintiffs and then Dayalu asked the plaintiffs to purchase the suit land, but they declined to so and thereafter he purchased the suit land from Dayalu after making inquiry about revenue record. DW-3, Sant Ram has stated that Solia and Dayalu were real brothers and they were owners of their land situate in village Jachh and they were also tenants of some of the land and they acquired proprietary rights of the tenancy land. He also deposed that Solia and Dayalu never purchased the suit land. 9. Mr. Rahul Mahajan, learned counsel for the appellants has strenuously argued that predecessor in interest of the plaintiffs, Solia had purchased the land from Mangat Ram, Tara Chand and Kaul Ram for a consideration of ` 1,45,000/-. In Ex.PW-1/A, both Solia and Dayalu are recorded joint owners in possession of the suit land. Ex.DW-2/A is the copy of Misal Haquiat Bandobast Jadid prepared at the time of settlement. The settlement had taken place in the area during the year 1965-66. Ex.DW-2/A proves that Solia and Dayalu were joint owners in possession of the land bearing Khasra Nos. 221, 223, 225, 226, 227, 245, 246, 250 and 251 alongwith other Khasra numbers. In Ex.DW-2/B State of Himachal Pradesh is recorded owner of land bearing Khasra - 6 - Nos. 220, 222, 224, 244, 247, 248, 249 and 253 alongwith other khasra numbers and Solia and Dayalu sons of Fuhanu are recorded in possession thereof as Gair Murusi. In Ex.DW-2/C, i.e. copy of jamabandi for the year 1976-77, DW-2/D, copy of jamabandi for the year 1990-91 and Ex.DW-2/F copy of jamabandi for the year 1995-96, Solia and Dayalu were recorded joint owners in possession of the suit land. 10. What emerges from the combined reading of the revenue entries is that Solia, predecessor in interest of the plaintiffs and Dayalu, defendant No.1 were already owners in possession of land bearing Khasra Nos. 221, 223, 225, 226, 227, 245, 246, 250 and 251 even prior to the settlement operation. However, Solia and Dayalu were tenants of land comprised in Khasra Nos. 220, 222, 224, 244, 247, 248, 249 and 253 under State of Himachal Pradesh and had acquired proprietary rights. The plaintiffs did not examine either Mangat Ram or Tara Chand or Kaul Ram, who were alive at the time of filing of the suit. It was necessary for the plaintiffs to examine these persons to prove that the suit land was sold by Mangat Ram, Tara Chand and Kaul Ram to Solia during settlement operation. The plaintiffs have failed to prove that their predecessor in interest, Shri Solia was exclusive owner in possession of the suit land. The plaintiffs have also not led any tangible evidence to prove that they have acquired title over the suit land by way of adverse possession. It was necessary for the plaintiffs to prove the ingredients of adverse possession. Rather, as noticed above, Dayalu has been recorded as joint owner in possession of the suit land as per Ex.DW-2/A, Ex.DW-2/B and Ex.DW-2/F. In these circumstances, it cannot be said that he had no right to alienate his share in the suit land. The land has been sold by defendant No.1, Dayalu to Dharam Dass, defendant No.2 - 7 - for a consideration of ` 1,45,000/-. Possession of the land sold was also delivered to him. The sale deed dated 5.4.2004 bearing No.268 is legal. 11. Accordingly, in view of the above observations made hereinabove, it is held that the trial Court and the Appellate Court have correctly appreciated the oral as well as documentary evidence led by the parties. The revenue record placed on record by the defendants has not been rebutted by the plaintiffs. The plaintiffs have failed to prove that Solia had purchased the land from Mangat Ram, Tara Chand and Kaul Ram. Solia and Dayalu were owners of the part of the suit land and the proprietary rights were also conferred on them as per revenue record. 12. Consequently, for the foregoing reasons, there is no substantial question of law involved in this regular second appeal and the same is dismissed. No costs. The records of the courts below be sent back. (Rajiv Sharma), Judge. February 21, 2011. (sck).