IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 139 of 1999. Reserved on:2.3.2009. Decided on: 16.3.2009. __________________________________________________ Prem Singh … Appellant. Versus Smt. Beaso Devi & others. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the appellant : Mr. R.K. Sharma, Advocate. For the Respondents : Mr. Neeraj Gupta, Advocate. ___________________________________________________________ Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree dated 26.2.1999 passed by the learned Additional District Judge (1), Kangra at Dharamshala in Civil Appeal No. 48- N/98. Brief facts necessary for adjudication of this regular second appeal are that the respondents-plaintiffs, hereinafter referred to as the plaintiffs for convenience sake, filed a suit to the effect that they were the owners in possession of the suit land and were entitled to remain as such in future as well. The mutation No. 7, dated 8.10.1986 regarding exchange of the suit land with the land of the appellant-defendant, hereinafter referred to as the defendant for 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 convenience sake, shown in Khasra No. 285 situate in Mohal and Mauza Dainkwan, Tehsil Nurpur, District Kangra, was a nullity being without the consent and intimation to the plaintiffs who entered into an agreement of exchange with the defendant. The plaintiffs also prayed for decree of possession in the alternative. The suit was contested by the defendant. The trial Court dismissed the suit on 16.4.1998. The plaintiffs preferred an appeal before the learned Additional District Judge (1), Kangra at Dharamshala. The learned Additional District Judge (1), Kangra at Dharamshala allowed the appeal and the judgment and decree passed by the learned trial Court dated 16.4.1998 was set aside. This regular second appeal is directed against the judgment and decree dated 26.2.1999. The regular second appeal was admitted on the following questions of law: 1. Whether the court below misread the evidence of DW-1 in coming to the conclusion that he made any admission against his case in reversing the judgment of the learned trial Judge? 2. Whether the learned first Appellate Judge could have nullified the entire transaction of exchange for the simple reason that plaintiff No.5 was alleged to be minor at the time of transaction? 3. Whether the learned first Appellate Judge committed any error in law in not dismissing the suit as not maintainable for the reason that the records in evidence proved not only possession of the 3 defendants but also the factum of attestation of mutation based on transaction of exchange? Mr. R.K. Sharma has strenuously argued that the judgment and decree passed by the learned Additional District Judge (1), Kangra at Dharamshala is not sustainable in the eyes of law. He then contended that the judgment and decree passed by the learned trial Court be restored. Mr. Neeraj Gupta has supported the judgment and decree dated 26.2.1999 passed by the learned Additional District Judge (1), Kangra at Dharamshala. I have heard the learned counsel for the parties and have perused the record carefully. Since the substantial questions of law are inter-connected and inter-linked, they have been taken up together for determination to avoid repetition and for convenience. PW-1 Smt. Biaso Devi has deposed that the plaintiffs were owners in possession of the suit land. They never exchanged the suit land with the defendant. It was only when they procured the revenue papers, they came to know that the defendant had incorporated the entries of mutation in his favour. They were never called to Jassur nor they ever appeared at Jassur where mutation was got entered. At the time of attestation of mutation, the defendant was Pradhan of the Gram Panchayat. PW-2 Shri Rattan Singh has deposed that he was Lambardar of the area and in his presence the suit land was never exchanged. According to him, the plaintiffs were in possession of the suit land which was 4 cultivated by Shri Narotam Singh. However, in his cross- examination, he has admitted that defendant was in possession of the suit land. The plaintiffs have placed on record copy of Jamabandi for the year 1983-1984 (Ext. P1) and copy of Jamabandi for the year 1985-1986 (Ext. P2). The plaintiffs have also placed on record copy of mutation No.7 (Ext. P4) and copy of Muaina Intkaal No. 7 as Ext. P-5. Exhibit P-3 is the copy of Misal Hakiat for the year 1985-1986. Shri Prem Singh defendant has appeared as DW-1. He deposed that he was the owner in possession of Khasra No.285 and the plaintiffs were the owners in possession of Khasra No. 511 and they exchanged their respective land. He gave total land to the plaintiffs and got the suit land from the plaintiffs. The mutation of exchange was also sanctioned and possession was also exchanged by the parties. According to him, at the time of attestation of mutation, the plaintiffs were present. DW-2 Shri Prakash Singh has supported the version of DW-1. DW-3 is Shri Sant Ram. According to him, the defendant and the family members of the plaintiffs were also present at the time of ‘Ishtemaal’. The defendant has produced on record copy Jamabandi for the year 1991-1992 (Ext. D-1). It is borne out from the record that the suit land was earlier owned and possessed by the predecessor-in-interest of the plaintiffs, namely, Shri Harnam Singh. Thereafter, the plaintiffs succeeded to the suit land and became its owners and came to be recorded in possession of the same. PW-1 has denied the exchange of the land. DW-1, DW-2 and DW-3 have deposed that 5 the suit land was exchanged with the plaintiffs. The plaintiff No.5, Shri Malkiat Singh was minor at the time of agreement of exchange. DW-2 has deposed categorically that at the time of exchange, plaintiff Shri Netar Singh was in the Army and was not present at that time. Plaintiff No.6, Smt. Pushpa Devi was not present at the spot since she was in the house of her in-laws. Even DW-3 has deposed that one of the plaintiff was not present at the time of exchange since he was serving in the Army. There is no evidence on record to suggest that the remaining plaintiffs were having power of attorney or any legal authority to enter into an agreement of exchange with the defendant qua the suit land. The plaintiffs were co-sharers. Plaintiff No.5 was a minor. Plaintiffs No. 3 & 6 were not present at the time of exchange. The mutation (Ext. P4) was attested on 8.10.1986. It is stated that the oral exchange took place on 2.2.1986. On 8.10.1986 only presence of plaintiff No.1, Smt. Biaso Devi is recorded. The plaintiff No.1 was identified by Shri Krishan Singh, Patwari and not by the Lambardar. Cumulatively, it is held that at the time of attestation of mutation, only Smt. Biaso Devi was present. The other plaintiffs were not informed by the Revenue Officer to be present at the time of attestation of the mutation. The mutation is required to be attested in the presence of the parties as per Section 38 of the H.P. Land Revenue Act. It was also mandatory for the Revenue Officer as per paragraph 8.82 (E) of the Land Records Manual to call all the parties who were interested and to provide them with an opportunity of being heard at the time of attestation of the mutation (Ext. P-4). 6 Accordingly, there is no merit in this regular second appeal and the same is dismissed. No costs. (Rajiv Sharma), J. March 16, 2009. (cr)