IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 427 of 2000 Date of decision: 27.08.2011 Des Raj and others ... Appellants Versus Subhar alias Subhash Chand and others … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellants: Mr. Karan Singh Kanwar, Advocate. For the respondents: Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate, for respondent No. 1. V.K. Ahuja, J. (Oral): This is a Regular Second Appeal under Section 100 C.P.C., filed by the appellants against the judgment and decree of the Court of learned District Judge, Hamirpur, dated 9.6.2000, vide which he affirmed the judgment and decree passed by the learned Sub Judge 1st Class, Hamirpur, dated 28.2.1989, dismissing the suit for declaration filed by the appellants. 2. Briefly stated, the facts of the case are that the appellants hereinafter referred to as the plaintiffs filed a suit for declaration and injunction as against the respondents, hereinafter referred to as the defendants, on the allegations that they are owners in joint possession to the extent of 1/3rd share and other 1/3rd share is owned and jointly possessed by defendants No. 1 and 2 and 1/3rd share of 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 defendants No. 3 to 6 of the suit land as detailed in the plaint measuring 79 Kanals 15 Marlas. The plaintiffs alleged that they and defendants became owners on the basis of registered gift deed executed by the previous owner Smt. Radha on 17.9.1957 in regard to whole land measuring 79 Kanals 15 Marlas. It was also alleged that defendant No. 1 has got no title or interest to claim or assert his claim for more than his 1/6th share in the suit land. It was also alleged that vide Mutation No. 141, the revenue authorities reviewed Mutations No. 103 and 123 and as such, the plaintiffs are deemed to be entitled to remain in joint possession till re-partition. Hence, the suit filed by the plaintiffs. 3. The defendants took up the preliminary objections in regard to maintainability and jurisdiction. On merits, they pleaded that area of the suit land has been rightly recorded in the mutation as 59 Kanals 13 Marlas, in which the plaintiffs have 1/3rd share, defendants No. 1 and 2 have 1/3rd share and defendants No. 3 to 6 1/3rd share. It was also alleged that land comprised in Khata Nos. 7, 12, 14, 15, 16, 19 and 31 was already sold prior to the gift and, therefore, the area of the land was wrongly mentioned in the gift deed and mutation has been rightly reviewed and as such, the suit is liable to be dismissed. 4. On the pleadings of the parties, the following issues were settled by the learned trial Court:- “1. Whether the parties are joint owners in possession over the suit land i.e. 79 Kanals 15 Marlas as alleged? … OPP 2. If issue No. 1 is proved what are the shares of the parties? … OPP 3. Whether the plaintiffs are entitled to the relief of permanent injunction as alleged? … OPP 3 4. Whether this court has no jurisdiction to try the present suit? … OPD 5. Whether the suit is bad for non-joinder of necessary parties? … OPD 6. Whether the plaintiffs are estopped from filing the present suit by their act and conduct? … OPD 3 to 6 7. Whether the suit is not maintainable due to the provisions of order 2 rule 2 CPC? … OPD 3 to 6 7-A. Whether this Court has no jurisdiction to try this suit as alleged in preliminary objection No. 1? … OPD 8. Relief.” 5. Parties led their evidence and the learned trial Court vide its impugned judgment decided Issues No. 1, 2 (redundant), 3, 4, 7-A as against the plaintiffs and in favour of the defendants and consequently, dismissed the suit of the plaintiffs. Those findings on appeal were affirmed by the learned District Judge vide his impugned judgment. 6. I have heard the learned counsel for the parties and have gone through the record of the case. 7. The appeal in question was admitted on the following substantial question of law, which reads as under:- “Whether learned District Judge has erred in mis- construing, misinterpreting, not considering or not properly considering relevant material on record and more particularly sale deed dated 17.9.1957 Ext. R 19, mutation Ext. P3 both in favour of Radha with further omission to decide how much and which land was exactly in the hands of Radha when she gifted land measuring 79 kanals 15 marlas in favour of parties vide gift deed dated 17.9.1957 Ext. AW2/A and in absence of pointed decision to this effect it has materially affected the ultimate decision 4 rendered by learned District Judge in the impugned judgment?” 8. The submissions made by the learned counsel for the appellants were that Smt. Radha had gifted land measuring 79 Kanals 15 Marlas to the parties as detailed in the plaint and Mutation No. 103 was attested on the basis of this gift deed, but vide Mutation No. 141 it was wrongly held that area of land gifted was only 59 Kanals 13 Marlas, which was wrongly reviewed by the revenue authorities and as such, the findings of the learned trial Court to the contrary are liable to be set aside, since it was never held by the learned trial Court that some land was already sold prior to the execution of the gift deed and the previous owner Smt. Radha owned and possessed only land measuring 59 Kanals 13 Marlas. 9. I have gone through the judgment passed by the learned District Judge. He had dealt with the matter in Paras 10 and 13 of the judgment and he had concluded that the case of the plaintiffs was that gift deed pertained to 79 Kanals 15 Marlas and they are entitled to 1/3rd share out of this land. It was observed that some of the land was under tenancy belonging to Radha and in the year 1975-76, they became owner. It was also held that the plaintiffs claimed the land qua their 1/3rd share in view of the gift deed, but had failed to mention how much land was sold by Radha prior to the execution of the gift deed. The Mutation No. 103 was reviewed only for the reason that the land in Khatas No. 11 and 12 were left out, meaning thereby it was of the plaintiffs, out of which the land was in the hand of Radha and mutation has not been challenged by filing any appeal till the filing of the suit. It was also observed that some land had been sold by Radha 5 to different persons to the extent of 20 Kanals and 12 Marlas, which fact has been admitted by the plaintiffs and their names have been mentioned and admitted by the plaintiffs such as Rama, Santu etc. Thus, it was concluded that there was nothing to hold that the plaintiffs were owning the land measuring 79 Kanals 15 Marlas at the time of making gift deed on 17.9.1957. 10. Smt. Radha could gift the land, she owned and possessed on the date of execution of the gift deed and in case some land had already been sold prior to the execution of the gift deed and the area was mentioned including the land already sold by her, the area has to be reduced and it was for the plaintiffs to prove that Smt. Radha was owner in possession of the land measuring 79 Kanals 15 Marlas, in which they had failed. Both the Courts below have come to the conclusion that the plaintiffs have failed to prove that Smt. Radha was owning land measuring 79 Kanals 15 Marlas on the date of execution of the gift deed and, therefore Mutation No. 141 was rightly attested by the revenue authorities. It is clear that no appeal was preferred by the appellants against the mutation order and once they had failed to prove that the mutation was wrongly reviewed, which conclusion had been drawn by both the Courts below, therefore, there can be no reappraisal of the evidence in this regard. It was rightly submitted by the learned counsel for respondent No. 1 that both the parties has been gifted a share in the land owned by Smt. Radha and in case the land gifted comes to 79 Kanals 15 Marlas at the time of making gift deed by Smt. Radha, the defendant(s) are also beneficiary and will also be entitled to the land as gifted by Smt Radha. However, the 6 appellants had failed to prove that the land gifted in all to both the parties, comes to 79 Kanals 15 Marlas. 11. It has also been observed by the learned trial Court that an application was filed before the C.O., which has been rejected and no appeal appears to have been filed by the plaintiffs against that order, which has become final, in which it was held that area measuring 59 Kanals 13 Maralas has come to the parties to the suit accordingly as per the gift deed, which findings were never challenged by the plaintiffs. There were clear observations that area of Khata No. 15 measuring 20 Kanal 12 Marlas has been referred to, out of which 12 Kanals were already sold prior to the execution of the gift deed and therefore, the controversy in regard to the actual land which was gifted away to the parties. However, the plaintiffs have failed to prove that land measuring 79 Kanals 15 Marlas was gifted to the parties. 12. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellants, which is dismissed accordingly Parties are left to bear their own costs. ( V.K. Ahuja ), August 27, 2011 Judge (BSS)