IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 474 of 2000 along with R.S.A. No. 534 of 2000. Judgment reserved on : 27.06.2011. Date of decision: 27.07.2011. 1. RSA No. 474 of 2000. Doom Ram & Ors. ….. Appellants. Versus Mohan Lal & Ors. ….Respondents. 2. RSA No. 534 of 2000. Mehar Singh & Anr. …Appellants. Versus Mohan Lal & Ors. ….Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellant (s) : Mr.K.D. Sood, Advocate. (in both the RSA) For the Respondents : Mr. Ashwani K.Sharma, Advocate. for respondents No. 1 to 8, 9(a) to 9(j) in RSA No. 474 of 2000 and for the respondents No. 1 to 3 and 5 to 9(i) to 9 (x) in RSA No. 534 of 2000. Kuldip Singh, Judge . This judgment shall dispose of RSA No. 474 of 2000 and RSA No. 534 of 2000, both having arisen from common judgment, decree dated 29.04.1999 passed by learned Additional District Judge, Mandi, in Civil Appeal No. 66 of 1992 and Civil Appeal No. 70 of 1992. RSA No. 474 of 2000 has been filed by defendants No. 1, 4, 5, 7 to 9. RSA No. 534 of 2000 has been filed by defendants No. 2 and Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 3. Some of the parties have died. Their legal representatives have been brought on record, the parties are referred to as plaintiffs and defendants in this judgment. 2. The brief facts are that Smt. Indira, Nand Lal and Smt. Ruke had filed a suit for declaration that they are successors-in- interest of late Bal Kishan along with proforma defendants namely Govind, Lajja, Smt. Urmila, Smt. Chuhri, Smt. Nirmala and Padma in which plaintiffs have 3/8th shares and proforma defendants 5/8th shares in land measuring 17-11-11 bighas described in the plaint. The land measuring 3 bighas comprised in Khasra No. 374/62 be adjusted in the shares of proforma defendants while ascertaining the shares of plaintiffs. They have also prayed decree of joint possession in their favour as well as in favour of proforma defendants. 3. The further case of the plaintiffs is that land measuring 17-15-19 bighas was recorded in the ownership and possession of late Bal Kishan and Durga Dutt in equal shares. Bal Kishan had died on 04.03.1963 issueless, he was not married, he was succeeded by plaintiffs and Durga Dutt in equal shares. Durga Dutt died in the year 1984 and his estate was succeeded by proforma defendants. Durga Dutt during his lifetime had sold Khasra No. 374/62 measuring 3 bighas in ‘hissedari’ to Hari Singh, Nikku, Durga Dutt and Rameshwar in equal shares. 4. It has been alleged that defendant No.1 in collusion with lower revenue staff got his name recorded as non-occupancy tenant over land measuring 14-11-11 bighas comprised in Khasra Nos. 45, 475/62, 101 and 103. The entry of non-occupancy tenant in favour of 3 the defendant No. 1 is wrong and illegal. On the basis of wrong revenue entry, the proprietary rights were conferred vide mutation No. 124 behind the back of the plaintiffs. The defendant No.1 has also sold land in favour of defendant No.2 Mehar Singh and defendant No.3 Basanta vide registered sale deeds No. 412 and 413 respectively both dated 23.05.1989 which are wrong and illegal. Durga Dutt was real brother of plaintiffs No.1 and 3 and maternal uncle of plaintiff No.2 and remained in possession of suit land till his death. The plaintiffs came to know existence of wrong revenue entries in July, 1989. On 01.12.1989 the defendants refused to admit the claim of the plaintiffs. In these circumstances, plaintiffs filed suit for declaration with consequential relief of possession. 5. The defendants No. 1 to 5 and 7 to 9 contested the suit by filing written statement. They took preliminary objections of limitation, locus-standi, estoppel. On merits, they admitted that Durga Dutt died in the year 1984. They have denied that his share was inherited by proforma defendants. It has been alleged that Durga Dutt was exclusive owner in possession of the suit land. The entries showing Bal Kishan owner are wrong and illegal. It was pleaded that Bal Kishan died in the year 1963. 6. The further case of the defendants is that Durga Dutt used to look after Bal Kishan and cultivated the entire suit land during the life time of Bal Kishan, who was unmarried. The plaintiffs are not heirs of Bal Kishan and they are not entitled to any property of Bal Kishan. They have no right, title or interest in the suit property. 4 7. Durga Dutt remained in exclusive possession of the suit land from the year 1950 to the knowledge of the plaintiffs. Durga Dutt had become owner by way of adverse possession of the suit land. He inducted defendant No.1 as tenant in the year 1970. On coming into force H.P. Tenancy and Land Reforms Act, the defendant No. 1 became exclusive owner in possession of the suit land. It has been denied that revenue entries were manipulated in collusion with revenue staff. The defendant No. 1 had sold the suit land to defendants 2 and 3 vide registered sale deeds. The defendants 2 and 3 are the bonafide purchasers for value of the suit property. The plaintiffs filed replication. 8. On the pleadings of the parties, the following issues were framed:- 1. Whether the suit is within time? OPP. 2. Whether the plaintiffs have no locus-standi to file the present suit? OPD. 3. Whether the plaintiffs are estopped by their acts and conducts to file the suit? OPD. 4. Whether late Sh. Durga Dutt had acquired title by adverse possession of the share of late Sh. Bal Kishan in the suit land? OPD. 5. Whether the defendant No.1 was inducted as non- occupancy tenant of the suit land by late Sh. Durga Dutt and as such become the owner in possession of the suit land? OPD. 6. Whether the plaintiffs had inherited the share of late Sh. Bal Kishan in the suit land? OPP. 7. Whether the defendants No. 2 and 3 are the bonafide purchasers of the suit land as alleged? OPD. 8. Relief. 5 The issues No. 1 and 6 were answered in affirmative and issues No. 2,3,4,5 and 7 in negative and the suit was decreed on 19.09.1992 The defendants No. 1,4, 5, 7 to 9 filed Civil Appeal No. 66 of 1992 and defendants No. 2,3 filed Civil Appeal No. 70 of 1992 against judgment, decree dated 19.09.1992 which were dismissed on 29.04.1999 by learned Additional District Judge, hence two second appeals. 9. RSA No. 474 of 2000 has been admitted on following substantial questions of law:- 1. Whether the suit of the plaintiff was maintainable in the Civil Court and the order of the Land Reforms Officer could be challenged confirming the ownership rights on Doom Ram on 28.4.1976 could be challenged in the suit filed on 12.12.89? 2. Whether the plaintiff’s suit was within limitation and maintainable in view of Article 100 or Article 113 of the Limitation Act? 3. Whether in view of the provisions of Section 41 of the Transfer of Property Act the sale made in favour of Mehar Singh and Sant Ram could be challenged by the plaintiff? 10. RSA No. 534 of 2000 has been admitted on following substantial questions of law:- 1. Whether on the proper construction of Section 41 of the Transfer of the Property Act and material on record the appellants were bonafide purchasers for consideration and entitled to the protection of Section 41 of the Transfer of Property Act? 2. Whether the suit of the plaintiff was maintainable in the Civil Court and the order of the Land Reforms Officer 6 could be challenged confirming the ownership rights on Doom Ram on 28.4.1976 could be challenged in the suit filed on 12.12.89? 3. Whether the plaintiffs’ suit was within limitation and maintainable in view of Article 100 or Article 113 of the Limitation Act? 4. Whether in the absence of plea challenging the order of the Land Reforms Officer, the plaintiff could be granted decree for joint possession in respect of 3/8th share when Surat Ram brother of Balkrishan had given share to Durga Dutt in his life time? 11. I have heard learned counsel for the parties and have also gone through the record. On behalf of the appellants, it has been submitted that the suit is not maintainable. The order of the Land Reforms Officer dated 28.04.1976 conferring proprietary rights on Doom Ram could not be challenged in the suit filed on 12.12.1989. The suit is barred by limitation both under Articles 100 and 113 of the Limitation Act. The sales made by defendant No.1 in favour of defendants 2 and 3 vide sale deeds Ex. PW4/A and Ex. PW3/A are protected under Section 41 of the Transfer of Property Act. The plaintiffs could not be granted decree of joint possession of 3/8th share when Surat Ram brother of Bal Kishan had given share to Durga Dutt during his lifetime. The prayer was made for accepting both the appeals. The learned counsel for the respondents has supported the impugned judgment and decree. He has submitted that two Courts below have concurrently recorded findings in favour of the plaintiffs. The findings are based upon appreciation of evidence. The defendants have not shown that such findings are perverse or 7 material evidence has been ignored by two Courts below in recording the findings in faovur of the plaintiffs. He has prayed for dismissal of both the appeals. 12. The substantial question of law No. 1 in RSA No. 474 of 2000 and substantial question of law No. 2 in RSA No. 534 of 2000 being common are taken up together for determination. The proprietary rights were conferred on Doom Ram vide mutation No. 124 dated 28.04.1976. The plaintiffs in the plaint have alleged that the proprietary rights of land measuring 14-11-11 bighas were conferred vide mutation No. 124 behind their back. In Chuhniya Devi Versus Jindu Ram 1991(1) SLC 223, one of the questions was whether Civil Court has jurisdiction in respect of the order of conferment of proprietary rights under Section 104 of the H.P. Tenancy and Land Reforms Act, 1972, which has not been assailed under the said Act. 13. The Full Bench held that Civil Court has no jurisdiction to go into any question connected with the conferment of proprietary rights under Section 104 of the H.P. Tenancy and Land Reforms Act, 1972, except in a case where it is found that the statutory authorities envisaged by that Act had not acted in conformity with the fundamental principles of judicial procedure or where the provisions of the Act had not been complied with. The bare perusal of mutation No. 124 Ex. PJ indicates that it has been attested in absence of plaintiffs or their predecessor owner of the land. Therefore, the Civil Court has jurisdiction to determine dispute even in the face of Ex.PJ mutation 8 conferring proprietary rights. The aforesaid substantial questions of law in both the appeals are decided against the appellants. 14. The substantial question of law No. 2 in RSA No. 474 of 2000 and substantial question of law No. 3 in RSA No. 534 of 2000 are similar, therefore, these substantial questions of law are collectively taken for decision. It has been submitted on behalf of the appellants that the proprietary rights were conferred on 28.04.1976 on defendant No.1, who sold the land to defendants 2 and 3 vide sale deeds Ex. PW4/A and Ex. PW3/A, both dated 23.05.1989. The suit has been filed on 12.12.1989. It has been submitted that Article 100 or Article 113 of the Limitation Act, 1963, is applicable in the present case. The suit has been filed more than 13 years after conferment of proprietary rights on 28.04.1976, therefore, suit is time-barred. 15. The plaintiffs in the plaint have averred that they came to know about the wrong entries in revenue record in July, 1989. On 01.12.1989 the defendants refused to admit the claim of the plaintiffs. It has been contended that the suit on 12.12.1989 was within limitation. The two Courts below under issue No. 1 have held that defendant No. 1 was not inducted as tenant by Durga Dutt on the suit land. The Land Reforms Officer had no jurisdiction to confer proprietary rights on defendant No. 1 once there was no relationship of landlord and tenant. 16. In Ajudh Raj and others v. Moti AIR 1991 SC 1600, it has been held that in a suit for title to an immovable property which has been the subject-matter of a proceeding under a Special Act if an adverse order comes in the way of the success of the plaintiff, he 9 must get it cleared before proceeding further. On the other hand if the order has been passed without jurisdiction, the same can be ignored as nullity, that is, non-existent in the eye of law and it is not necessary to set it aside; and such a suit will be covered by Article 65. The order dated 24.08.1976 Ex. PJ is without jurisdiction and, therefore, it can be ignored for granting relief to the plaintiffs. It has been pleaded in the plaint by the plaintiffs that they came to know about wrong revenue entries in July, 1989, and on 01.12.1989 the defendants refused to admit the claim of the plaintiffs. The suit was filed on 12.12.1989 for declaration etc., and was within limitation. The aforesaid substantial questions of law are decided against the appellants. 17. The substantial question of law No. 3 in RSA No. 474 of 2000 and substantial question of law No. 1 in RSA No. 534 of 2000 can be conveniently taken up together for disposal. It has been contended on behalf of the appellants that defendants 2 and 3, who are appellants in RSA No. 534 of 2000 are bonafide purchasers for valuable consideration without notice to the defect in the title of defendant No.1 in whose favour proprietary rights were conferred on 28.04.1976 vide Ex. PJ. It has been submitted that defendants 2 and 3 were not expected to go behind the legality of order dated 28.04.1976 conferring proprietary rights on defendant No.1. They have purchased the respective portion of the suit land vide sale deeds Ex. PW4/A and Ex. PW3/A. The two Courts below have not properly construed the evidence in returning findings on issue No.7 against defendants 2 and 3. 10 18. Section 41 of the Transfer of Property Act provides that where with the consent express or implied of the persons interested in immovable property, a person is the ostensible owner of the such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it; provided that the transferee after taking reasonable care to ascertain that the transferor had power to make the transfer had acted in good faith. In the present case, it is not the case of the defendants 2 and 3 that defendant No.1 with the express or implied consent of Bal Kishan and Durga Dutt was ostensible owner of the property which they purchased from defendant No.1 On the contrary, it is the case of the defendants 2 and 3 that they have purchased the portion of the suit land vide sale deeds Ex. PW4/A and Ex. PW3/A from defendant No.1. 19. This apart, DW-3 Basant Singh has stated that he had purchased 6¼ bigha land from Doom Ram for a consideration of ` 22,000/- vide sale deed Ex.PW3/A. He had seen the revenue record when the land was purchased. In cross-examination, he has stated that he did not ask Doom Ram how he got the land. The land is situated in village Beh. He has stated that on the date of recording of his statement, the market price of the land was ` 25,000-30,000/- per biswa. The statement of DW-3 was recorded on 24.04.1992. 20. DW-4 Mehar Singh has stated that he has purchased 8 ½ bighas land for a consideration of ` 27,000/- vide sale deed Ex. PW4/A. In cross-examination, he has stated that he had seen the revenue papers of last 20-22 years when he purchased the land. In 11 1970 also in revenue record, Doom Ram was recorded as owner. Prior to 1970 who was owner of the suit land, he did not ask from anybody. 21. The lands were sold on 23.05.1989. It is not the stand of defendants 2 and 3 that in three years in Village Beh due to special reasons there was abrupt rise in market price of the land. At the time of making statement on 24.04.1992 approximately three years after the execution of the sale deeds Ex. PW4/A and Ex. PW3/A, DW-3 has stated that the market price of the land in village Beh was ` 25,000-30,000/- per biswa. In other words, the market price of the land comes to ` 5 to ` 6 lacs per bigha. On the contrary, the defendants 2 and 3 had purchased the land at the rate of plus ` 3,000/- per bigha. There is no explanation for huge difference of market price of the lands purchased vide sale deeds Ex. PW4/A and Ex. PW3/A and the market price stated by DW-3 in his statement. The defendants 2 and 3 have not explained under what circumstances huge concession was given by defendant No.1 to them for selling the land. The inadequacy of sale consideration is not a ground to set aside the sales, but it is pointer that sales are not bonafide. 22. DW-3 has stated that he did not ask Doom Ram how he got the land. DW-4 has stated that even in the year 1970 Doom Ram was recorded owner in the revenue record. This statement of DW-4 is false inasmuch as Doom Ram got the alleged proprietary rights on 28.04.1976 vide mutation No. 124 Ex. PJ. The two Courts below have recorded a finding of fact that defendants 2 and 3 are not bonafide 12 purchasers of the suit land. The view taken by the two Courts below emerges from the evidence on record. It is not a case that two Courts below have ignored material evidence or recorded their findings that defendants 2 and 3 are not bonafide purchasers on the basis of inadmissible evidence. The re-appreciation of evidence in second appeal is not permitted. Thus, it cannot be said that the defendants 2 and 3 are bonafide purchasers for valuable consideration of the suit land. The substantial question of law No. 3 in RSA No. 474 of 2000 and substantial question of law No. 1 in RSA No. 534 of 2000 are decided against the appellants. 23. It has been contended that plaintiffs could not be granted decree for joint possession in respect of 3/8th shares as Surat Ram brother of Bal Kishan had already given his share to Durga Dutt in his lifetime. In the grounds of appeal before the lower Appellate Court, no such plea was taken that plaintiffs are not entitled to 3/8th shares as Surat Ram brother of Bal Kishan had given his share to Durga Dutt in his lifetime nor such plea has been taken by the defendants in the written statement. In these circumstances, defendants 2 and 3, who are appellants in RSA No. 534 of 2000 cannot be permitted to take this plea in second appeal. The substantial question of law No. 4 in RSA No. 534 of 2000 is decided against the appellants in that appeal. 24. In view of above discussion, there is no merit in both the appeals and same are dismissed with no order as to costs. July 27, 2011. (Kuldip Singh), ( krt) Judge.