IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.320/1998 Reserved on:19.12.2008 Decided on: 6.1.2009 Baldev Krishan and others. …Appellants. Versus Leela Devi and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the appellants : Mr. Ramakant Sharma, Advocate. For the Respondents : Mr. Deepak Kaushal, Advocate for respondents No.1,2, 7 and 8. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 21.4.1998 passed by the learned District Judge Sirmaur District at Nahan in Civil Appeal No. 45-N/13 of 1995/1993. Brief facts necessary for the adjudication of this Regular Second Appeal are that the appellants-plaintiffs (hereinafter referred to as ‘the plaintiffs’ for convenience sake) filed a suit for possession on the basis of title. The case set up by the plaintiffs is that the predecessor-in-interest of the present respondent-defendant Smt. Leela Devi i.e. Siri Ram (now deceased) was owner in possession of the land measuring 14-11 bighas 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 together with houses constructed on a part of it comprising of Khasra No. 96, 272/225/154 situated in village Sainwala, Tehsil Paonta Sahib. He sold his 3/4th share from this land measuring 10-17 bighas together with houses constructed thereon vide registered sale deed dated 2.9.1983 in favour of the plaintiffs. Consequently, the mutation was attested on 21.9.1983. Smt. Leela Devi respondent-defendant No.1 (hereinafter referred to as ‘defendant No.1’ for convenience sake) daughter of the vendor Sh. Siri Ram filed a suit for possession for pre-emption against the plaintiffs. It was dismissed by the learned Sub Judge, Paonta Sahib. After the dismissal of the suit filed by Smt. Leela Devi, the defendants took over the forcible possession of the suit land together with house constructed without the consent of the plaintiffs. The suit was contested by the defendants. It was mainly contested on the ground that the possession of the suit land was never handed over to the plaintiffs and they remained in possession of the suit land. It was also the case of Sh. Siri Ram that he has sold the land comprised in Khata Khatauni No. 27/62 kita 2 measuring 14 bighas whereas the plaintiffs had filed the suit qua the land bearing Khasra Nos. 96, 272/225/154 situated in village Sainwala. The learned Sub Judge 1st Class decreed the suit on 5.12.1992 for possession on the basis of title in respect of the land comprised in Khata Khatauni No. 28/64, Khasra No. 96 and 272/225/154 measuring 10 bighas measuring 10 bighas 17 biswas alongwith house situated in village Sainwala, Tehsil Paonta Sahib, District Sirmour. The defendants preferred an appeal before the learned District Judge. The learned District Judge partly accepted the appeal and the judgment and decree dated 5.12.1992 passed by the trial court was set aside. However, since the execution of the sale deed dated 2.9.1983 in respect of 3/4th share of the land of Khasra Nos. No. 96 and 272/225/154 had been proved, the suit of the 3 plaintiffs was partly decreed and the learned District Judge passed a decree for joint possession to the extent of 3/4th share in respect of the land of Khasra Nos. 96 and 272/225/154 in favour of the plaintiffs. This Regular Second Appeal has been filed against the judgment and decree dated 21.4.1998 with a prayer to restore the judgment and decree dated 5.12.1992 passed by the learned Sub Judge 1st Class, Paonta Sahib. The Regular Second Appeal was admitted on the following substantial questions of law: 1. “Whether the learned lower appellate court is right in passing a decree for joint possession especially when a specific portion out of the total land was sold and the plaintiffs were put in possession thereof? 2. Whether the learned lower appellate court is right in declining the relief of possession especially when it has come to the conclusion that sale deed Ext.PB stood proved? 3. Whether the learned lower appellate court is right in declining the decree for possession on the ground that it has not been specifically described in the sale deed whereas, the perusal of the sale deed Ext. PB shows otherwise and the possession of the appellants was admitted by the daughter of Shri Siri Ram in a pre- emption suit filed by her?” Mr. Ramakant Sharma, Advocate has supported the judgment and decree passed by the learned Sub Judge 1st Class, Paonta Sahib. His contention is that the plaintiffs have proved the execution of the sale deed and their possession over the suit land before their forcible eviction after the dismissal of the suit filed by Smt. Leela Devi. He lastly contended that the parties knew the exact measurement of the land which was sold by late Sh. Siri Ram to the plaintiffs on the basis of the sale deed as well as on the basis of the suit filed by Smt. Leela Devi against the plaintiffs. 4 Mr. Deepak Kaushal, Advocate has supported the judgment and decree passed by the leaned District Judge, Sirmaur. His submission was that the plaintiffs have failed to prove that they were put in possession at the time of sale deed and it could not be ascertained from the sale deed that which portion of the suit land was sold to the plaintiff. I have heard the learned counsel for the parties and perused the record carefully. The agreement is Ex.PA. It was registered on 2.9.1983. The mutation No. 326 was attested in favour of the plaintiffs on 21.9.1983. PW-1 Sh. Ramesh Chand has testified that in his presence, the plaintiffs and defendant had executed an agreement to sell of the land and house. He scribed the said agreement i.e. Ex.PA. It was executed for a consideration of Rs. 60,000/-. He read over and explained the contents to Sh. Siri Ram (deceased), who after admitting the same to be correct put his thumb impression on it. A sum of Rs. 30,000/- was paid as earnest money to defendant Siri Ram (deceased). PW-4 V.K. Chaudhary and PW-5 N.L. Perwal were present at the time when he scribed Ex.PA. They also appended their signatures on it. PW-2 Bajirudin has deposed that in his presence agreement to sell was executed between the plaintiff and the defendant for the land and house which was scribed by PW-1 Ramesh Chand and he also signed the same. The agreement was read over and explained by Ramesh Chand to Sh. Siri Ram, who after admitting it to be correct put his thumb impression upon it. A sum of Rs. 30,000/- was paid as earnest money. PW-3 A.K. Sareen has deposed that sale deed Ex.PB was executed in his presence and he appended his signatures upon it as a witness. The contents of Ex.PB were read over and explained in his presence to the vendor who after admitting it to be correct put his thumb impression upon it. PW-4 V.K. Chaudhary has deposed that Sh. Siri Ram 5 in his presence sold the land and house to the plaintiff and the sale deed Ex.PB was also executed. He appended his signatures as a witness. The contents of the same were read over to Sh. Siri Ram. In his presence the plaintiff paid Rs. 30,000/- before the Sub Registrar. He identified Sh. Siri Ram before the Sub Registrar. PW-5 N.L. Perwal has deposed that he had instituted a civil suit on behalf of Leela Devi daughter of Sh. Siri Ram against Baldev Krishan Ramji Dass and Radhey Shyam. Sh. Siri Ram was also a party. He has placed on record certified copy of plaint, application for amendment and amended plaint Exs. PW-5/A, PW-5/B and PW-5/C. He has admitted in his cross-examination that he had filed the suit about the land qua which the sale deed was executed. PW-6 Radhey Shyam has deposed that they had purchased the suit land for consideration of Rs. 60,000/-. Before the execution of the sale deed Ex.PB, Ex.PA was entered into between the plaintiff and defendant Sh. Siri Ram. He has accepted Rs. 30,000/- at the time of execution of the agreement to sell and Rs. 30,000/- were accepted at the time of registration of the sale deed. Agreement to sell Ex.PA was scribed by Ramesh Chand and S/Sh Satish Kumar and Bajirudin signed it as marginal witnesses. DW-1 Siri Ram has deposed that he had executed an agreement to sell of the suit land for a consideration of Rs. 60,000/- but Rs. 60,000/- were not paid to him. According to him, the plaintiffs were never put in possession of the suit land because they did not pay the money. DW-2 Ranjit Singh has supported the version of the defendant. He has deposed that he was cultivating the suit land. DW-3 Jagdish Chand has deposed that for the last 10-15 years Ranjit Singh was in possession of the suit land. DW-4 Karam Singh has deposed that the plaintiff and defendant had compromised in which the plaintiff had agreed to cancel the sale 6 deed in case defendant Siri Ram pays Rs. 30,000/- alongwith cost of registered sale deed. The concurrent findings have been recorded by both the courts below that the sale deed pertains to Khasra No. 96 and 272/225/154. It is established by tangible evidence led by the plaintiffs that the agreement to sell was entered into between the parties vide Ex.PA and a sum of Rs. 30,000/- was paid to the vendor in the presence of PW-1, PW-2 and PW-3. The contents of the agreement were read over to the vendor which he understood to be correct. He has put his thumb impression after the contents of Ex.PA were read over to him. The sale deed was registered on 2.9.1983 and the mutation was attested on 21.9.1983. Another sum of Rs. 30,000/- was paid at the time of registration of the sale deed. This version is supported by PW-4, PW-5 and PW-6. The learned trial court has returned a finding that the plaintiffs were put in possession of the suit land by the vendor after the agreement to sell was entered into between the parties vide Ex.PA. However, the findings returned by the learned District Judge are that the plaintiffs were not put in physical possession of the suit land. According to him the plaintiffs could not be put in physical possession since the suit land was required to be partitioned for the reason there were other co-sharers. However, as noticed above, the learned District Judge has concurred with the finding of the trial court that the suit pertains to Khasra No. 96 and 272/225/154. Now, the short controversy is that whether the plaintiffs were put in possession by the defendant Sh Siri Ram (deceased) or not? PW-6 Radhey Shyam has deposed that after the agreement to sell they were put in possession of the suit land. According to him Smt. Leela Devi daughter of Sh. Siri Ram had filed a suit for pre-emption. The suit was dismissed by the learned Sub Judge. The defendants took over the forcible 7 possession of the land and house immediately after the dismissal of the suit. Sh. Siri Ram had also filed a suit against the plaintiffs for declaration that the sale deed Ex.PA was fraudulent document. He has mentioned in plaint Ex.PW-6/A that he was owner to the extent of 3/4th share in the land comprised in Khata Khatauni No. 27/62 measuring 14 bighas 11 biswas, as such, the land measuring 10 bighas 17 biswas fell in exclusive share of the plaintiff. Sh. Siri Ram had admitted that he entered into agreement to sell for a sum of Rs. 60,000/-. Smt. Leela Devi had filed a suit for getting the possession of land measuring 10 bighas 17 biswas of land out of Khata Khatauni No. 27/62, Khasra Nos. 96 and 272/225/154. She has admitted in the suit land comprised in Khasra No. 272/225/154. PW-5 N.L. Perwal has categorically deposed that he had filed a suit on behalf of Smt. Leela Devi qua the suit land. He has placed on record Exs.PW-5/A, PW-5/B and PW-5/C. PW-6 Radhey Shyam has also admitted, as noticed above, that the possession was handed over to them by Siri Ram after the execution of the agreement to sell Ex.PA. A bare perusal of Ex.PB establishes that Siri Ram has sold and delivered the possession of 3/4th share of land measuring 10 bighas 11 biswas of land out of 14 bighas 11 biswas. Sh. Siri Ram was in possession of entire land measuring 14 bighas 11 biswas. It was not necessary for the plaintiffs to annex the copy of any tatima as observed by the learned District Judge. The plaintiffs were put in possession as per the contents of Ex.PA. This version has been supported by PW-6 Radhey Shyam. PW-5 N.L. Perwal, as noticed above, has categorically stated that he had filed the suit on behalf of Smt. Leela Devi qua the same suit land. In other words the defendants knew the exact dimensions of the suit land, possession of which was handed over to the plaintiffs by defendant Sh. Siri Ram. In fact, Sh. Siri Ram had also filed a suit for declaring the sale fraudulent. The 8 plea now being raised has not been raised at the time of filing of the suit qua the portion possession of which was handed over to the plaintiffs by the defendant Sh. Siri Ram. By way of Ex.PA which was registered Ex.PB, the land measuring 10 bighas 17 biswas was delivered alongwith house. It was not necessary when the parties knew the exact portion of which possession was handed over to the plaintiffs to go for partition as observed by the learned first appellate court. The learned first appellate court has not taken into consideration the statement of PW-6 Radhey Shyam, who has categorically deposed in his cross-examination that the possession was handed over to them by Sh. Siri Ram. It was not necessary for the plaintiffs to approach the police as observed by the first appellate court. It was not for the police to get the possession restored to the plaintiffs after dismissal of the suit of Smt. Leela Devi. The plaintiffs have rightly approached the civil court for the redressal of their grievance. The first appellate court has given undue credence to the statements of DW-3 Jagdish Chand and DW-2 Ranjit Singh. DW-2 Ranjit Singh is the son-in-law of late Sh. Siri Ram. The learned first appellate court has not taken into consideration at all the earlier civil suit filed by Sh. Siri Ram deceased and Smt. Leela Devi against the plaintiffs. He ought to have considered the plaints and the decrees passed in both the suits. The suit was filed by Sh. Siri Ram for declaring the sale deed fraudulently and the suit by Smt. Leela Devi was for pre-emption. The finding of the learned District Judge that the plaintiffs will be deemed to be the co-sharers with other defendants is also liable to be set aside in view of the analysis made hereinabove. Consequently it is held that the plaintiffs have proved the actual delivery of possession of the suit land to them as per the contents of the sale deed. The findings recorded by the learned first appellate court that 9 the possession was not handed over to the plaintiffs are liable to be set aside. It is reiterated that in view of the prolonged litigation between the parties, the area measuring 10-17 bighas was easily identifiable. It was not necessary for the plaintiffs to get the area partitioned after the same stood identified. It was also not necessary to seek the consent of other co-sharers like Smt. Ambika Devi etc. who have remained mute spectator during the litigation between the parties. Smt. Ambika etc. could be added as party by the defendant themselves. Consequently in view of the observations made hereinabove, this Regular Second Appeal is allowed. The judgment and decree passed by the learned District Judge, Sirmaur District at Nahan is set aside and the judgment and decree passed by the learned trial court is restored in its entirety. There will, however, be no order as to costs. 6.1.2009 (Rajiv Sharma ), J. *awasthi*