IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA. No.: 571 of 2010. Reserved on: 04.01.2011. Decided on: 21.02.2011. __________________________________________________________ Ishwar Dass and another. … Appellants. Versus Collector, Kullu and others. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the Appellants : Mr. K. R. Kashyap, Advocate. For the Respondents : None. Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree dated 1.10.2010 rendered by the learned Additional District Judge (Fast Track Court), Kullu, in Civil Appeal No.26 of 2009/RBT No.20 of 2010. 2. Material facts necessary for adjudication of this regular second appeal are that the appellants/plaintiffs (hereinafter referred to as “the plaintiffs” for convenience sake) instituted a suit for declaration that they be declared owners in possession of 14 shares out of 39 shares in the suit land bearing Khasra Nos. 1811, 1812, 1813 and 1814 situate in Mauza Barshai, Tehsil Manali, District Kullu. It was pleaded that the suit 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. - 2 - land was earlier owned and possessed by one Nanak Chand son of Dahlu. He alienated the suit land to Janaki Devi, predecessor in interest of the plaintiffs vide sale deed No.1235 dated 14.2.1974. Land measuring 4 biswas out of the total area of Khasra No.788 had already been acquired by the State Government in the year 1969. Compensation was paid to Nanak Chand, Predecessor in interest of defendants No.3 and 4 (hereinafter referred to as “defendants No.3 and 4” for convenience sake). No entry was made regarding these 4 biawas of land in the revenue record. Nanak Chand was recorded as owner to the extent of 2-3 bighas of land at the time of execution of sale deed. This fact was never disclosed to Janaki Devi, vendee and sale deed was executed for 2-3 bighas for a consideration of ` 18,000/-. Bimla Devi, (defendant No.3), daughter of Nanak Chand instituted a civil suit for pre- emption. The suit was compromised and a decree for 1-9 bighas was passed in favour of Bimla Devi. The claim with regard to 14 biswas of land was dismissed. In other words, 14 biaswas of land was left to Janaki Devi. Janaki Devi constructed a residential house, cow shed and saw mill on the vacant portion of suit land. She died on 17.9.2005. She had executed a Will on 13.3.1991 in favour of the plaintiffs. Plaintiffs when visited the Patwari, came to know that 4 biswas of land was deducted from the share of Janaki Devi, whereas, this land should have been deducted from the share of Bimla Devi as she was successor of Nanak Chand. Plaintiffs requested the defendants No.1 and 2 to rectify this error. Notice was also issued under Section 80 CPC to them. Defendant No.3 alienated Khasra Nos. 1811, 1812 and 1813 in favour of defendant No.5. Defendant No.5 was threatening to oust the plaintiffs from the suit land. It is in these circumstances that the civil suit had been - 3 - filed by the plaintiffs. The suit was contested by the defendants. Defendants No.1 and 2 had filed a separate written statement. It was asserted that the State had already lawfully acquired 4 biswas of land from Nanak Chand. Nanak Chand was paid compensation. Land was acquired for construction of Kullu-Manali road. The new Khasra No. was 1815 instead of old Khasra No.788. Defendants No.3 and 5 also filed separate written statement. It was admitted that Nanak Chand was owner of Khasra No.788. He had sold the land to Janaki Devi on 14.2.1974. It was also admitted that Bimla Devi had filed a suit for possession, which was compromised. She was minor at the time of institution of the suit. She was given 1-9-0 bighas of land and remaining land was left to Janaki Devi, predecessor in interest of the plaintiffs towards the side where she had constructed the house. Pre-emption money of ` 17,500/- was deposited and the possession was delivered to defendant No.3, Bimla Devi. Written statement was also filed by defendant No.9 separately. According to defendant No.9, Janaki Devi had donated the suit land to defendants No.9 and 10 and plaintiff No.1 in the year 1978. It was asserted that Janaki Devi had no right to execute the Will regarding the suit land in favour of the plaintiffs. The Will was a result of fraud. Defendant No.1 was owner in possession of Khasra Nos. 1811 to 1814. However, he has admitted that 4 biswas of land was to be deducted from the share of Bimla Devi and not from the share of Janaki Devi. Defendants No.10 and 11 have also filed written statement. Plaintiffs have filed separate replications denying the contents of written statements of defendants No.1, 3 and 5. The trial Court framed the issues on 19.9.2007. The trial Court dismissed the suit on 31.3.2009. Thereafter, the plaintiffs filed an appeal before the learned Additional - 4 - District Judge (Fast Track Court), Kullu. Same was dismissed by him on 1.10.2010. Hence, this regular second appeal against the judgment and decree dated 1.10.2010 passed by the learned Additional District Judge. 3. Mr. K.R. Kashyap, learned counsel for the appellants has strenuously argued that both the Courts below have passed the judgments and decrees by ignoring the well settled principles of law. According to him, the learned Courts below have misread the oral as well as documentary evidence produced on record by the parties. According to him, land measuring 4 biswas was to be deducted from the share of Bimla Devi being the successor in interest of Nanak Chand. 4. I have heard Mr. K.R. Kashyap, learned counsel for the appellants at length and have gone through both the judgments carefully. 5. Plaintiff, Ishwar Dass has appeared as PW-1. He has adduced his evidence by way of affidavit, Ex.PW-1/A. According to him, the previous owner of the suit land was Nanak Chand. He was father of defendant No.3 and husband of defendant No.4. He sold land measuring 2-3-0 bighas to his mother Janaki Devi for sale consideration of ` 18,000/- on 14.2.1974 and possession was given to his mother. He visited the Patwri Halqua on 19.4.2007 and came to know that land measuring 0-4-0 bighas out of the suit land was acquired through award No.Acquisitiion-MO/Kullu/68-3, dated 31.3.1969 from Nanak Chand and Nanak Chand received the compensation. Neither defendants No.1 and 2 nor Nanak Chand got the entries in this regard made in the revenue record. In fact, Nanak Chand concealed this fact from Janaki Devi and he represented that he was owner of land measuring 2-3-0 bighas. He received the sale consideration of the whole area. He further stated that defendant No.3 had filed civil suit No.68 of 1974 in the Court against the - 5 - sale deed and one suit was filed by Hotam Ram, real brother of Nanak Chand. That suit was compromised between Janaki Devi and defendant No.3, Bimla Devi. According to the terms and conditions of the compromise, Janaki Devi was given 0-14-0 bighas of land and land measuring 1-9-0 bighas was given to defendant No.3 (Bimla Devi) out of the total land measuring 2-3-0 bighas. According to him, area measuring 0-4-0 bighas was to be deducted from the share of defendant No.3. He came to know about these revenue entries only on 19.4.2007. The suit was instituted on 31.8.2006. PW-2 is Ashita Bodh. She has produced the record of case No.23/75. PW-3, Dame Ram, Patwari, Land Acquisition has placed on record copy of CC form Ex.PW-3/A. According to him at Sr. No.75 Nanak Chand had received ` 461.91. Thus, it is duly proved that Nanak Chand had received the compensation. 6. Defendant No.3, Bimla Devi has appeared as DW-1. She deposed that her father had sold the suit land. She did not know how much land was sold by her father to Janaki Devi. She filed a suit through her guardian against Janaki Devi. The suit was compromised. She paid the amount and as per the compromise, land measuring 1-9-0 bighas was given to her and possession of the same was also given to her through Court in 1992. Mutation was attested in her favour. She has also deposed that out of land measuring 1-9-0 bighas of land she has sold 3 biswas of land to Amar Chand, defendant No.5. 7. The core issue involved in this regular second appeal is whether area measuring 0-4-0 bighas as acquired by defendants No.1 and 2 was liable to be deducted from the land measuring 1-9-0 bighas which was given to defendant No.3, Bimla Devi in civil suit No.68 of 1974 - 6 - vide decree dated 25.9.1978 (Ex.P-9). The suit was compromised between defendant No.3, Bimla Devi and Janaki Devi, predecessor in interest of the plaintiffs. The plaintiffs have placed reliance on Ex.P-1, i.e. akas tatima, copy of jamabandi Ex.P-2, copy of jamabandi Ex.P-3, Akas Tatima Ex.P-4, copy of jamabandi Ex.P-5, copy of mutation Ex.,P- 6, copy of jamabandi Ex.P7, copy of jamabandi Ex.P-8 and copy of decree dated 25.9.1978 Ex.P-9. According to Ex.P-2, the land comprised in Khasra No.1815 was recorded in the ownership of Government of Himachal Pradesh and possession of Public Welfare Department was shown. The nature of the land was shown as Gair Mumkin Road. In Ex.P-3, the land comprising in Khasra No.1151 has been shown in the ownership of Government of Himachal Pradesh. These two jamabandis do not pertain to the suit land. According to jamabandi for the year 2000-2001, Ex.P-5 and Ex.P-7, the suit land comprised in Khasra Nos. 1811, 1812, 1813 and 1814 has been recorded in the ownership of Bhagti Devi, Yog Raj, Mehar Chand and Bimla Devi. The share of Bimla Devi has been recorded as 29/39. The share of Bhagti Devi is recorded as 10/39. It is, thus, proved that defendant No.3, Bimla Devi has 29 shares out of 39 shares and Janaki Devi, predecessor in interest of the plaintiffs had 10 shares in the suit land. It is also proved on the basis of material placed on record that defendant No.3, Bimla Devi has sold part of her share to Amar Chand, defendant No.5. It is evident from Ex.P-5 and copy of mutation No.279 based on decree dated 25.9.1978 that land measuring 1-9-0 bighas was mutated in the name of defendant No.3. A bare perusal of Ex.P-9, i.e. copy of decree dated 25.9.1978 reveals that previous suit No.68 of 1974, filed by defendant No.3 in the present suit, Bimla Devi was decreed with - 7 - respect to land measuring 1-9-0 bighas on paying a consideration of ` 17,500/- out of the total land measuring 2-3-0 bighas comprised in Khasra No.788, Khata Khatauni No.179/369. It is not discernable from the decree that area measuring 0-4-0 bighas out of suit land was to be deducted from the land measuring 1-9-0 bighas belonging to defendant No.3. This land has been acquired by defendant No.3 on the basis of Ex.P-9 after paying ` 17,500/-. She was put in possession vide Ex.DW- 2/A issued by the Court of Senior Sub Judge, Kullu. Moreover, the plaintiffs have not proved the copy of sale deed No.1235 dated 14.2.1974. The plaintiffs have not given any plausible explanation why the sale deed No.1235, dated 14.2.1974 was not proved on record. The trial Court and the first appellate Court have correctly appreciated the oral as well as documentary evidence placed on record. The plaintiffs have failed to prove that the land measuring 0-4-0 bighas was to be deducted from the share of defendant No.3, Bimla Devi being successor in interest of Nanak Chand son of Dahlu. 8. Accordingly, in view of the observations made hereinabove, there is no merit in this regular second appeal and the same is dismissed. No costs. The records of the courts below be sent back. (Rajiv Sharma), Judge. February 21, 2011. (sck).