IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.354 of 2000 Judgment reserved on: 17.5.2010 Date of decision: 16.7.2010 Vidya Devi and others ….. Appellants. Vs. Sant Ram and others …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No. For the Appellants : Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate. For the Respondents : Mr. S.S. Mittal, Senior Advocate with Mr. Surinder P. Sharma, Advocate for respondents No. 1, 4, 8 & 9. None for other respondents. Kuldip Singh, Judge. This appeal has been directed against the judgment, decree dated 22.5.1998, passed by the learned District Judge, Solan Camp at Nalagarh in Civil Appeal No. 38-NL/13 of 1996 affirming judgment, decree dated 26.4.1996 passed by learned Sub Judge Ist Class, Nalagarh in Civil Suit No. 11/1 of 1988. 2. The brief facts of the case are that the appellants had filed a suit for declaration with consequential relief of injunction on the Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… grounds that the suit land was acquired by Sangaru and Nafru, predecessors-in-interest of the appellants and defendants No. 2 to 13 in equal shares on payment of Rs.15/- Nazrana vide receipt No. 64 dated 10.8.1984 BK, but inadvertently mutation No.25 of the land was wrongly attested in favour of Sangaru and Nafru to the extent of half share and Kundu, predecessor-in-interest of defendant No.1 to the extent of remaining half share. Kundu neither paid Nazrana nor claimed any right, title or interest in the suit land. The suit land remained in exclusive possession of Sangaru and Nafru openly, continuously and as a matter of right, they had acquired title by way of adverse possession. The appellants, defendants No. 2 to 11 and proforma defendants No. 12 & 13 are co-owners in joint possession of the suit land since time immemorial. 3. The further case of the appellants is that the defendant No.1 filed an application for partition of the suit land before the Assistant Collector First Grade, Nalagarh on 31.1.1951, which was compromised on 22.1.1953 wherein he admitted that the revenue entries showing him owner of half share of the suit land were wrong, the suit land was taken on Nazrana by the predecessors-in-interest of the appellant and defendants No. 2 to 13. In those proceedings, the predecessor-in-interest of the appellants and defendants No. 2 to 13 agreed to part with 10 bighas out of the suit land to the defendant No.1. The partition case was dismissed as withdrawn on 6.2.1953. The defendant No.1 did not enforce the compromise nor he took into possession 10 bighas of land which was agreed to be given to him as per compromise. In revenue record, however, defendant No.1 …3… continued to be recorded as owner of half share of the suit land. The defendant No.1 took advantage of these wrong revenue entries and sold half share, measuring 22 bighas, 11 biswas to defendants No. 10 and 11 vide sale deed dated 16.9.1987 for sale consideration of Rs.11,000/- and mutation No. 454, dated 20.9.1987 was attested behind the back of interested parties. The defendant No.1 had no right to sell half share of the suit land in favour of defendants No. 10 and 11. 4. The suit was contested by some defendants. The defendant No.1 in his written statement denied that Sangaru and Nafru had acquired the entire suit land in equal shares or that they paid entire Nazrana. According to the defendant No.1, half share in the suit land was acquired by his father Jalam, while the remaining half share in the suit land was acquired by Sangaru and Nafru, mutation No. 25 was rightly attested. The defendant No.1 denied that he or his predecessors never remained in possession of the suit land or that the suit land remained in possession of the appellants and defendants No. 2 to 13. The defendant No.1 defended the sale deed dated 16.9.1987. He denied having entered into any compromise with the appellants or their predecessors in partition case in the year 1951. That defendant No.1 denied the claim of the appellants. 5. The defendants No. 5 to 7 also denied the claim of the appellants. The defendants No. 10 and 11 in their written statement have taken the objections of maintainability of the suit and limitation by way of preliminary objections. They denied that only Sangaru and Nafru acquired the entire suit land. The defendants No. 10 and 11 …4… took similar plea regarding the acquisition of land by Sangaru, Nafru and Jalam as taken by defendant No.1. They have taken the plea that they are owners-in-possession of the land, which was purchased by them from defendant No.1. 6. The appellants filed replications and reiterated their stand. 7. On the pleadings of the parties, following issues were framed: 1. Whether the Nazrana was paid by the predecessors of the plaintiff and proforma defendants, as alleged. If so its effect? OPP 2. Whether the mutation attested and entries made thereafter in the record of rights are wrong, as alleged? OPP 3. Whether the sale effected by defendant No.1 in favour of defendant No.4 and others void as alleged, if so its effect? OPP 4. Whether the plaintiff has become owner being in exclusive possession by way of adverse possession as claimed? OPP 5. Whether any admissions has been made by the defendant No.1 as alleged if so its effect on the rights of the parties? 6. Whether there is no cause of action to file the present suit? OPD 7. Whether the suit is barred by limitation? OPD 8. Whether the plaintiffs are estopped from filing the present suit by their act and conduct, as alleged? OPD 9. Whether the suit is not maintainable in the present form, as alleged? 10. Relief. …5… 8. The issues No. 1, 5 and 9 were answered in negative and issues No. 6 to 8 in affirmative and the suit was dismissed on 26.4.1996. In appeal, the learned District Judge has affirmed the judgment, decree dated 26.4.1996, hence second appeal which has been admitted on the following substantial question of law: Whether the courts below have misread and misappreciated the oral and documentary evidence on record, more specifically, Exts. D-1 and D-2 to dismiss the claim of the plaintiffs-appellants that the suit land was exclusively acquired by their predecessor-in-interest and that of respondent-defendants 2 to 13 and Mutation No. 25 recorded in favour of respondent-defendant No.1 and subsequent entries in his favour are wrong and illegal and to no effect to the rights of the plaintiffs- appellants? 9. I have heard Mr. G.D. Verma, learned counsel for the appellants and Mr. S.S. Mittal, learned counsel for respondents No. 1, 4, 8 and 9 and have also gone through the record. 10. Mr. Verma has submitted that the courts below have misread oral and documentary evidence on record more particularly, Ext. D-1 and Ext. D-2 and have erred in rejecting the claim of the appellants/plaintiffs that the suit land was exclusively acquired by Sangaru and Nafru, predecessors-in-interests of the plaintiffs and defendants No. 2 to 13. He has submitted that in these circumstances, mutation No. 25 attested in favour of predecessor-in- interest of defendant No.1 and subsequent revenue entries in favour of the defendant No.1 are wrong and illegal. Mr. Mittal on the other hand, has supported the impugned judgment, decree. …6… 11. Ext. P-12/A is a copy of mutation No. 25 which was attested in favour of Sangaru, Nafru in equal shares of half share and Jalam remaining half share on payment of Rs.15/- Nazrana. Ext.D-1 is the statement of defendant No.1 stating therein that the land was acquired by Mastu etc. on payment of Nazrana, land is owned by them. In the compromise, he accepted the offer of the other side vide which 10 bighas land was to be given to him and the mutation of ownership of land measuring 35 bighas, 2 biswas was agreed to be attested in favour of Mastu, Nafru, Khajanu and Sheesh Ram. Ext D-2 is the joint statement of Khajanu, Mastu, Sheesh Ram and Nafru. Ext.P-6 is the order dated 22.4.1953 passed by the Assistant Commissioner, Nalagarh, in which it has been observed that Sant Ram has compromised the issue with his co-sharers and the file was consigned to the record room. Ext. P.11-A is the copy of jamabandi for the year 1981 in which Sangaru and Nafru in equal share of half share and Jalam of the remaining half share are recorded owners of land measuring 45 bighas, 2 biswas. The appellants have questioned sale deed dated 16.9.1987 Ext. DY-1. 12. The learned counsel for the appellants has submitted that defendant No.1 has admitted the claim of the appellants which is clear from Ext. D-1 which proves that mutation No. 25 Ext. P.12-A to the extent of half share of the suit land was wrongly attested in favour of Jalam, father of defendant No.1. It has been submitted that in view of statement Ext.D-1 of defendant No.1, the appellants are entitled to relief claimed in the suit. The learned counsel for the appellants on the basis of statement Ext.D-1 of defendant No.1 is over simplifying …7… the issue involved. It appears from Ext.D-1 and Ext.D-2 that some settlement was arrived at between the parties and in this context statements Ext.D-1 and Ext.D-2 were made, but ultimately the partition case was dismissed vide Ext.P-6. The appellants did not file any suit against defendant No.1 for enforcing his statement Ext.D-1. The defendant No.1 through his father Jalam has proved his title on the suit land on the basis of mutation Ext. P.12-A, jamabandi Ext.P.11-A. It cannot be said that merely by making statement Ext.D-1, defendant No.1 had divested his title on the suit land. 13. It appears vide gift deed dated 21.6.1977 Ext.DW-2/A daughters of Nafru after accepting the position recorded in the revenue record, executed the gift deed. Ram Rattan and Soma Successors of Sangaru similarly executed sale deed dated 1.8.1978 Ext. DW-3/A after accepting correctness of revenue entries regarding suit land. The appellants have not assailed Ext.DW-2/A and Ext.DW-3/A. The appellants have placed nothing on record to show that only Sangaru and Nafru originally acquired the suit land to the exclusion of Jalam. There is nothing on record to doubt the attestation of mutation No. 25 in favour of Sangaru, Nafru and Jalam in the manner it has been attested in their favour. The long standing revenue record supports the case of defendant No.1 that Jalam had acquired half share in the suit land and remaining half was acquired by Sangaru and Nafru. The appellants have failed to establish their case. 14. The appellants have also failed to prove their adverse possession on the suit land. The appellants are co-owners, …8… possession of one co-owner enures for the benefit of other co-owners unless adverse possession against co-owner is proved, which in the present case the appellants have miserably failed to prove. The two courts below have taken a possible view from the evidence on record. There is no merit in the appeal. The substantial question of law, referred to above, is decided against the appellants. 15. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. July 16, 2010. ( Kuldip Singh ) (VT) Judge.