IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 129 of 1999 Judgment reserved on : 22.6.2009 Date of Decision : July 13, 2009 Smt. Bimla Himalvi Appellant Versus Shri Kishan Chand and others. Respondents Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellant : Ms. Seema Guleria, Advocate, for the appellant. For the respondents : Mr. G. D. Verma, Senior Advocate, with Mr. Romesh Verma, Advocate, for respondents No. 1 and 3 to 7. Sanjay Karol, J. The present appeal was admitted on the following substantial questions of law: “1. Whether the lower appellate Court has not legally appreciated the evidence of the parties and has drawn wrong inferences and conclusions? 2. Whether a transfer of a property by a person with possession, who has no perfect title at the time of such transfer, confer a valid title on the transferee, when the title of transferor perfected? 1 Whether reports of Local Papers may be allowed to see the judgment? 2 3. Whether invalid transfer of property, made with possession, perfects the title of transferee, on expiry of a period of limitation to get the possession of land back? 4. Whether an oral transfer of property coupled with an written agreement and possession, is binding against the legal representatives of such transferor? 5. Whether in view of facts of the case and other circumstances, the plea of Part Performance of Contract is available to the Appellant and learned trial Court as well as the learned Lower Appellate Court has fallen in an error of law while deciding the matter? 6. Whether the documents marked Exhibits P-1, P-2, P-3 and P-4 have not legally considered by the learned Lower Appellate Court for collateral purpose in view of Proviso to Section 49 of the Registration Act? 7. Whether a transfer of property made during the pendency of litigation by one party on the basis of wrong revenue entries, can be held non-possession of other party without any other supporting evidence to this effect?” At the time of hearing the appeal the learned counsel for the appellant fairly confined his submissions on Quesions No. 2, 3 and 6. However, according to leaned counsel for the respondent, no substantial question of law arises for consideration in the present case. The plaintiff/appellant herein filed civil suit No. 58/1 of 87/85, inter alia, pleading that in terms of oral sale transaction he had purchased the suit land from Shri Chet Ram in April, 1968. Certain documents with regard to the same were executed on 16.3.1968, 3 21.3.1968 and 2.4.1968. Subsequent to the death of Shri Chet Ram, his successor- in-interest confirmed the oral sale and actual cultivatory possession of the plaintiff. The oral sale was confirmed vide agreement dated 27.6.1972 and 22.6.1973. Based on the said pleadings the plaintiff filed a suit praying for the following prayers: “(1) Permanent injunction be issued restraining the defendants, their agents and servants from interfering in the plaintiff’s actual possession of the suit lands comprised in Khasra No. 108 measuring 3 Bighas and 13 Biswas, situated in Mouza Malyana, and in Khasra No. 90, measuring 1 Bigha and 2 Biswas, situated in Mouza Kasumpti-Koti, both in Tehsil and District Shimla, Himachal Pradesh; (2) In case the plaintiff is found wrongfully dispossessed from any part, or whole, of the suit land before or/and during the pendency of the suit, possession of the same may be restored to him by passing a decree of possession and permanent injunction therefor in favour of the plaintiff and against the defendants; (3) such other relief as may seem just and equitable in the circumstances of the case be also granted to the plaintiff and against the defendants; and (4) costs of the suit may also be awarded.” In the written statement, the defendants/respondents herein, categorically denied alienation of the suit property in any manner, either by Shri Chet Ram or by his successors-in-interest. The physical possession of the suit land being with the defendants, the 4 suit was resisted as having been filed with a view to grab the land from the poor defendants. Based on the pleadings of the parties the trial Court framed the following issues: “1. Whether the plaintiff is owner in possession qua land in suit under a purchase, as alleged? OPP 2. If issue No. 1 is not proved, whether the plaintiff has become owner of land in suit by way of adverse possession as alleged? OPP 3. Whether the revenue entries in the land in suit are incorrect as alleged? OPP 4. Whether the plaintiff is entitled to the relief of perpetual injunction, as prayed for? OPP 5. Whether the suit is within limitation? OPP 6. Whether the suit is bad for nonjoinder of necessary parties? OPD 7. Whether the plaintiff is estopped to file the present suit by his own acts, deeds, conduct etc, as alleged? OPD 8. Relief.” Considering the statements of the plaintiff’s witnesses as also the documents Ext.P-1 and Ext.P-2 written on 16.3.1968, 21.3.1968, 2.4.1968 and agreements Ext.P-3 and Ext.P-4 the trial Court came to the conclusion that notwithstanding the statement of Shri Arjun Singh (PW-1) the formal witness to the aforesaid agreements, the plaintiff (PW-2) and the other attesting witness Shri Charan Dass (PW-4) and Shri Padam Chand (PW-5) could not prove that any sale transaction in fact had taken place as alleged by the plaintiff. The agreements did not bear the signatures of all the successors of Shri 5 Chet Ram and did not record the handing over of the possession of the suit land to the plaintiff. The plaintiff’s version was disbelieved after taking into account the statements made by the defendants’ witnesses, namely, Smt. Saroj Puri (DW-1), Shri Kishan Chand (DW-2), Shri Padam Lal (DW-3), Shri Roop Dass (DW-4), Shri Krishan Dass (DW-5) who proved the revenue record from 1951-52 upto 1984-85 (Ext. DA to Ext. DN), from which it is evident that the defendants continued to be in cultivating possession as owners of the suit land. In terms of judgment and decree dated 26.11.1993 the plaintiff’s civil suit No. 58/1 of 87/85, titled as Bimla Himalvi versus Sh. Kishan Chand and others, was dismissed as the plaintiff could not prove herself to be the owner in possession of the suit land. The plaintiff assailed the same before the District Judge, who after framing points for determination upheld the findings, judgment and decree passed by the trial Court. Plaintiff’s civil appeal No. 34-S/13 of 1994, titled as Bimla Himalvi versus Sh. Kishan Chand and others assailing the aforesaid Decree and judgment stood dismissed by the First Appellate Court in terms of judgment and decree dated 31.10.1998. From the record, except for the solitary statement of Shri Paras Ram PW-6, there is nothing on record to prove the plaintiff’s cultivatory possession on the suit premises. Neither the plaintiff nor 6 this witness has explained the revenue entries contrary to their statements. That apart, how the finding of the Court below with reference to the findings of the defendants possession is contrary to the record, has not been pointed out. The revenue entries as noticed herein above duly prove the defendants’ continuous and uninterrupted possession on the suit land. In the present case, as has been urged, the plea taken by the plaintiff is mutually contradictory and destructive. On one hand it has been argued that the plaintiff’s right of possession is perfected by virtue of oral sale transaction, duly reduced into writing at a subsequent point in time whereas on the other hand it is argued that the plaintiff has perfected its title of the suit land by way of adverse possession. In Karnataka Board of Wakf versus Government of India and others, (2004) 10 SCC 779 the Court has held as under: “A plaintiff, filing a title suit, should be very clear about the origin of title over the property. He must specifically plead it. The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.” (Emphasis supplied) It is also a settled position of law that mere possession for howsoever length of time does not result in converting the permissible possession into adverse possession. [Thakur Kishan Singh (Dead) versus Arvind Kumar, (1994) 6 SCC 591]. 7 The Apex Court in Roop Singh (Dead) through L.Rs. versus Ram Singh (Dead) through L.Rs., AIR 2000 Supreme Court 1485 has held as under: “7. …Mere possession for a long time does not result in converting permissive possession into adverse possession [Re: Thakaur Kishan Singh (Dead) v. Arvind Kumar, (1994) 6 SCC 591: (1994 AIR SCW 4082: AIR 1995 SC 73)]” 9. …It is also to be stated that plea of adverse possession and retaining the possession by operation of Section 53-A of the Transfer of Property Act are inconsistent with each other. Once it is admitted by implication that plaintiff came into possession of the land lawfully under the agreement and continued to remain in possession till the date of the suit, the plea of adverse possession would not be available to the defendant unless it has been asserted and pointed out hostile animus of retaining possession as an owner after getting in possession of the land. [Re: Mohan Lal v. Mirza Abdul Gaffar, (1996) 1 SCC 639: (1996 AIR SCW 306: AIR 1996 SC 910)]” It is also a settled position of law that once a party is able to prove its title, the onus of proof would be on the other party to prove the claims of title. [P.T. Munichikkanna Reddy and others versus Revamma and others, (2007) 6 SCC 59]. Even with regard to the plea of adverse possession the plaintiff has failed to plead and prove as to at what point of time he 8 declared animus towards the rightful owners. The plea of adverse possession has neither been pleaded nor proved as required under law. It has not come on record from which date the defendant, on the plea of sale had abandoned the title as owner. The plaintiff has failed to prove that defendant had abandoned the property or had acquiesced to their possession being adverse to the owner. Importantly the oral sale transaction evidenced by subsequent agreements is alleged to have taken place in the year 1968. Admittedly Shri Chet Ram was tenant in the suit premises as on the date of the said transaction. As such, he had no perfect marketable title to transfer as owner. It is not a case of transfer of tenancy. In fact he had no right in law to transfer the tenancy rights. The rights of Shri Chet Ram as also his successors were admittedly, governed by the provisions of Himachal Pradesh Tenancy and Land Reforms Act, 1972. By virtue of the provisions of the said Act, proprietary rights were conferred upon the tenants, but however the transfer of the same by sale, mortgage, gift or otherwise during a period of 10 years, from the date of acquisition of such proprietary rights stood barred by virtue of provisions of Section 113 of the Act. The relevant provisions of the Act are reproduced as under: “113. Bar of transfer of ownership rights – (1) No land in respect of which proprietary rights have been acquired under this Chapter shall be transferred by sale, mortgage, gift or otherwise during a period of ten years by a person from the date he acquires proprietary rights: 9 Provided that nothing in sub-section (1) shall apply to the transfer of land made for a productive purpose with the prior permission of the State Government in a prescribed manner. Provided further that nothing in this sub-section shall apply to the land mortgaged with the Cooperative Societies established under the Himachal Pradesh Co- operative Societies Act, 1968 (3 of 1969) or with a bank. (2) Any transfer of land made in contravention of sub- section (1) shall be void and no registering authority shall register any document evidencing such transfer under the Indian Registration Act, 1908.” Any transfer, in contravention of the Act is deemed to be void. Hence the transfer, allegedly entered into between the plaintiff and Shri Chet Ram or his successors-in-interest is void. From the evidence on record it is clear that the plaintiff has failed to prove the sale transaction alleged to have taken place between predecessor-in-interest of the defendants. The oral evidence keeping in view the consistent and unrebutted revenue record, showing the defendants’ title sufficiently proves them to be the owners in possession of the land. Even the first Appellate Court has not found favour with the plaintiff’s plea of sale. In view of the aforesaid findings I find no error with the findings returned by the Court below. In my considered view no substantial questions of law arise for consideration in the present 10 appeal. The appeal being without any merit is dismissed. (Sanjay Karol), Judge. July 13, 2009 (PK)