IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Regular Second Appeal No.84 of 1999 along with Cross Objection No.74 of 2000. Judgment Reserved on: 31.03.2009. Date of decision: 08.04.2009 Satish Sarotri …Appellant Versus Onkar Chand …Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Appellant: Mr.K.D. Sood, Advocate. For the Respondents: Mr.R.Maniktala, Advocate. Dev Darshan Sud,J. This appeal has been filed by the successors- in-interest of Smt.Mansa Devi, who was the plaintiff before the learned trial Court. She was the maternal- grand-mother of both the appellants herein. She instituted the suit (out of which these proceedings arise) for possession on the basis of ownership of a double storeyed house alongwith passages etc. comprising in Khata No.71 min, Khatauni No.152 min, Khasra No.265 (Abadi Deh), situated in Mohal Gishtwar, Mauza Thana, Tehsil and District Kangra, H.P. She pleaded title on the basis of a sale by Paras Ram son 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 of Shri Dhanpat for consideration and partly in satisfaction of a Court decree. The defendants contested the suit on a number of grounds including locus-standi of the plaintiff and pleaded that the sale deed dated 8.10.1955 Ex.PB was fictitious, fraudulent, and illegal, null and void and they are not bound by it. They alleged that the transaction is not bonafide. A specific stand was taken by them that Hukam Chand, defendant No.2, had become owner by way of adverse possession. On the nine issues settled, the learned trial Court held that the plaintiff was not the owner in possession of the house. Defendant No.2 was not a licensee as alleged. The suit was within limitation. All the issues were held against the defendants including the issue of adverse possession. The trial Court held on two crucial issues i.e. issues No.6 and 7 that no evidence was led by the defendants. These issues were: ”6. Whether the plaintiff is not a bonafide purchaser of the disputed house as alleged? OPD. 7. If issue No.6 is not proved then in that case whether the defendant No.2 has been become owner by way of adverse possession. OPD.” In-fact, issue No.6 had been abandoned, the suit was accordingly dismissed. It is undisputed that Smt.Mansa Devi died during the pendency of the suit before the learned trial Court and two applications; 3 one under Order 9 Rule 9 of the Code of Civil Procedure for restoration of the suit, which had been dismissed in default on 28.4.1992, and another application under Order 22 Rule 3 of the Code of Civil Procedure filed by the present appellants. These were allowed by the learned trial Court vide its order dated 23.9.1992: “23.9.1992: Present: Ld.counsel for the parties. The applications Under Order 22 Rule 3 CPC and U.O. 9 Rule 9 CPC are allowed in view of the statement of the ld.counsel for the defendants recorded placed on the file subject to costs of Rs.300/-. The file after completion be tagged with the main case file.” The statement of the counsel reads:- “Statement of Sh.P.P. Gupta, Adv.for the respondent. Stated that app.U/O 22 R 3 CPC and U/O 9 Rule 9 CPC subject to costs.” The suit was dismissed by the trial Court with perfunctory findings on the issues on which evidence had been led. The trial Court glossed over the vital evidence which established the title of the plaintiff viz. sale deed Ex.PB, the un-rebutted statement of PW-1 Satish Sarotri to the effect that the appellants were the successors in interest of the deceased plaintiff, Ex.PX mutation of inheritance of the estate of the deceased, in favour of the appellants. 4 An appeal was preferred by the appellants herein against the dismissal of the suit. The learned District Judge, held that Smt.Mansa Devi was owner of the suit property but declined relief to the appellants herein on the grounds that they have not been able to establish their succession to the estate of the deceased. This appeal has been admitted on two substantial questions of law:- “1. Whether the appellants could be non-suited on the grounds that they were not the heirs of the original plaintiff and entitled to succeed to the suit land in the absence of pleadings, issue and trial thereof? 2. Whether the Distt.Judge is right in dismissing the suit of the appellants in whose favour the mutation of inheritance of Smt.Mansa Devi, Ext.PX, has been attested and who were allowed to continue the suit as legal representatives of Smt.Mansa Devi and also when the defendants are not held to be the owners and tenants of the property?. Both these questions are taken up for discussion together. The learned District Judge had formulated two questions for determination, namely; (i) whether Mansa Devi was the owner of the property 5 and (ii) whether the appellants are her heirs? While deciding on the first question of ownership the learned District Judge has held that the case pleaded before the trial Court was that late Smt.Mansa Devi was the owner on the basis of a registered sale deed and that defendant No.2-respondent Hukam Chand had claimed ownership by way of adverse possession. The appellate Court after considering the registered sale deed Ex.PB held that it was a valid sale proved in accordance with law. On a totality of the consideration of the evidence on record, the learned District Judge concluded that the evidence on record established that Paras Ram was the owner of the house in dispute and that a valid registered sale deed Ex.PB was executed in favour of late Smt.Mansa Devi. He also held that Paras Ram was allowed to reside there as licensee and after his death the defendants were allowed to continue as such in that capacity. Defendant No.1-respondent did not claim ownership and possession of the disputed property and defendant No.2 Hukum Chand claimed ownership on the basis of adverse possession, but, did not appear as a witness and an adverse inference was drawn against him. The categoric finding of the learned court was that the defendants have failed to prove their ownership by way of adverse possession. The appellate Court holds: “… … … On the other hand the defendants have failed to prove their ownership by virtue of actual possession on disputed 6 site hence no presumption could be drawn that a person in possession of Abadi site is deemed to be the owner of the same in absence of there being no proof of possession on record. The defendant No.2 has failed to produce any document on the basis of which he derived title to the suit property. In view of the evidence discussed above, I hold and conclude that original plaintiff Mansa Devi was the owner of the sit house which has fallen down and disputed site now,whereas the defendants are mere licencees, who have no right to remain in possession of the same without the permission of the owner, hence the findings of the learned lower court to the contrary are wrong and contrary to the evidence available on record, hence liable to be upset, hence point No.1 is answered in affirmative.” The learned Court thereafter proceeds to hold that the appellants herein have not been able to establish their right to succeed to the estate of the deceased and merely because they were impleaded as legal heirs would not mean that they had succeeded to the estate of deceased Smt.Mansa Devi. On the first question as to whether there is ample evidence on the record to show that the appellants were heirs of deceased Smt.Mansa Devi, PW-1, Satish Sarotri, is categoric in his statement that she was their maternal-grand-mother and had no other heir 7 to inherit her estate except the appellants. There is no evidence on the record to show that there is no relationship between Smt.Mansa Devi and the appellants. The learned trial Court has not applied its mind to the facts of the case at all, rather the Court has gone awry by insisting on production of a shajra, little realizing that such record of relationship is kept only for tracing the lienage through the father and not through the mother. Both the Courts below also ignored that the statement of PW-1 was un-rebutted and even otherwise according to Section 15 of the Hindu Succession Act, 1956 on the death of a female Hindu, dying intestate her property would devolve on the appellants. Having held Mansa Devi to be the true owner, the defendants as mere licencees having failed to establish their title, the Court was wrong in ignoring the evidence of PW-1 who had clearly stated that they were the grandsons of the deceased with no other heir to inherit the deceased. An attempt has been made to discredit this testimony of the appellants on the ground that they did not produce the will executed by the deceased by virtue of which they were purported to inherit the estate. Even assuming that the will had not been produced, the estate would devolve by intestacy by virtue of Section 15 supra. The defendants still have no claim to title. The oral evidence on record leaves no doubt that but for the appellants there is no other person to succeed 8 to the estate of Smt.Mansa Devi. When considered with the mutation Ex.PX, there is no doubt in my mind that it is the appellants alone who have succeeded to the estate. This is not to say that the mutation of inheritance Ex.PX itself constitutes proof of title. It is by now well settled that the entries in the revenue record can only be corroborative of a particular state of affairs and by themselves do not determine individual rights of inheritance and cannot be treated as documents of title. It is true that mere impleadment as legal representative does not determine title, but when this fact is considered with the other evidence on record, it corroborates and establishes the claim of the appellants herein. Both these questions are, therefore, answered in favour of the appellants. I hold that the learned District Judge was correct in determining that late Smt.Mansa Devi was the owner of the suit property. The other part of the judgment holding that the appellants have not been able to establish their rights to succeed, cannot be upheld. This appeal is accordingly disposed of. The suit of the plaintiffs is decreed with costs throughout. Cross-Objection No.74 of 2000. Learned counsel appearing for the respondents has urged that the Courts below have erred in holding that Ex.PB transferred a valid title as the land is Abadi Deh and the vendor not being the resident of village could not have transferred this land. He 9 submits that Smt.Mansa Devi was not a bonafide purchaser of the suit land and was not entitled to any protection in law. He has placed reliance on a judgment of this Court in Kewal Ram vs. The Gram Panchayat, Bhutti and others, AIR 1988 HP 21. These objections require to be dismissed outright as, this point was urged before the District Judge, who found as a fact that the defendants have nowhere proved their ownership by virtue of actual possession on the disputed site and no presumption can be drawn in their favour. More-over, before the trial Court, both the points of bonafide purchase and adverse possession were abandoned by the respondents. Cross-objections are accordingly dismissed. There shall be no order as to costs. April 8th, 2009. (Dev Darshan Sud) (aks) Judge.