IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 103/2007 alongwith Cross objections No. 218/2007 Reserved on: 8.4.2011 Decided on: 28.04.2011 _____________________________________________ RSA No. 103/2007 Moti Ram. …Appellant. Versus Ram Swaroop and others. …Respondents. Cross-Objections No. 218/2007 Moti Ram. …Non cross-objector. Versus Ram Swaroop and others. …Cross-objectors. _______________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the appellant/ : Mr. G.D. Verma, Sr. Advocate with Non cross-objector. Mr. B.C. Verma, Advocate For the Respondents: Mr. B.B. Vaid, Advocate. Cross-objectors. ____________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 19.2.2007 rendered by the 1 Whether reporters of the local papers may be allowed to see the judgment? yes 2 learned District Judge, Shimla in Civil Appeal No.54-S/13 of 2006. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the respondents- plaintiffs (hereinafter referred to as ‘plaintiffs’ for convenience sake) instituted a suit for declaration to the effect that they are owners in possession of the land, as detailed in the plaint, situated in village Jablog, Tehsil and District Shimla entered in the jamabandi for the year 1996- 97 and also for consequential relief that the appellant- defendant (hereinafter referred to as ‘defendant’ for convenience sake) be restrained from interfering with the possession of the plaintiffs over the suit land and in the alternative for possession if the plaintiffs were found to be out of possession of the suit land. It was alleged that the suit land was jointly owned by the plaintiffs. However, the suit land has been coming in Hissadari possession of plaintiff No.3. Defendant has nothing to do with the suit land, but he threatened to interfere with the possession of the plaintiffs. It is further averred that defendant had been threatening to cause interference in the suit land. When resisted to do so, he openly declared that he has a document about 29 years old in his possession executed by plaintiff No.3, Lachhmi 3 Singh, on the basis of which he could claim ownership of the property in question. Defendant told that the document was in the nature of mortgage deed and that plaintiff No.3, Lachhmi Singh, would be allowed to cultivate the suit land only on payment of ` 4,00,000/- as the suit land was mortgaged, as claimed by the defendant with him by Lachhmi Singh for a sum of ` 1,000/- in the year 1971 and such amount has now become ` 4,00,000/-. It is further averred that Lachhmi Singh, plaintiff No.3, had taken a loan of ` 1,000/- from the defendant for a period of one month and at the time of taking the loan, defendant procured signatures of the plaintiff conveying that the same were with the purpose of returning the loan amount. Thereafter, Lachhmi Singh returned the loan to the defendant and the matter was over. It is further averred that the conversion of such document, if any, by the defendant showing himself as mortgagee of the suit land or sale is absolutely illegal and ineffective against the rights of the plaintiffs. It is further averred that the plaintiffs have never entered into any agreement or deed of mortgage qua the suit land with the defendant. Even otherwise, any mortgage of land above ` 100/- requires registration. It is further averred that on perusal of the revenue records, it was found that the 4 defendant was recorded as “Gair Maurusi tenant” in respect of the suit land and on further inquiry it has been found that the Patwari has made a change of the entry in the Rojnamcha Wakiati on account of some sale. Such entry has been made at the back of the plaintiffs. It is further averred that the suit land was previously owned by plaintiffs No.1 and 2 and Smt. Nandi and Jamna in 4 shares out of 8 shares. The remaining 4 shares were in the ownership of Lachhmi Singh and Smt. Shanti Devi. Smt. Shanti Devi and Naraini Devi have transferred their shares in August, 1997 in favour of Lachhmi Singh through a relinquishment deed. Thus, Lachhmi Singh has become owner of the suit land to the extent of ½ share only in August, 1997. Earlier he had 1/8th share in the same. However, he was in exclusive possession as ‘Hissedar’ of the entire suit land. It is in these circumstances that the suit was filed for declaration to the effect that the plaintiffs are owners in possession of the suit land and in the alternative decree for possession of the suit land on the basis of title has been prayed. The plaintiffs have prayed for decree for possession by redemption of mortgage. 3. Written statement was filed by the defendant. On merits, it is averred that Lachhmi Singh was in possession 5 of the suit land as ‘Hissedar’ in the year 1968-69. He transferred the suit land orally in favour of defendant in the year 1970 for a consideration of ` 1,000/- and memorandum to this effect was prepared on 25.4.1970. It is further averred that the fact of oral sale was reported to the revenue agency and thereafter the defendant was entered in the column of possession in lieu of sale. It is also averred that again in the month of February, 1975, defendant approached the plaintiffs for getting his name entered in the ownership column in the revenue record and at that time Transfer of Property Act was not applicable to the area. Plaintiffs made an endorsement on 9.2.1975 that they will execute registered document. Thus, it is claimed that the defendant was the owner in possession of the suit land because of oral sale. Alternatively, it is averred that the defendant is in peaceful and continuous possession of the suit land since 1970 and he has become owner of the same by way of adverse possession, which commenced from 9.2.1975. Plaintiffs filed replication, reiterated the allegations made in the plaint and denied those put forth in the written statement. 4. Learned Civil Judge (Senior Division) framed issues on 24.2.2003. Trial court decreed the suit as under: 6 (a) “A decree for declaration to the effect that the plaintiffs are joint owner in possession of the suit land as detailed in para No.1 of the plaint is hereby passed in favour of the plaintiffs and against the defendant. (b) A decree for permanent injunction restraining the defendant from interfering in the possession of the plaintiff over the suit land as detailed in the head note of the plaint is also passed in favour of the plaintiffs and against the defendant.” 5. Defendant preferred an appeal before the learned District Judge, Shimla against the judgment and decree dated 30.5.2006 passed by the Civil Judge (Senior Division). Learned District Judge partly allowed the appeal on 19.2.2007 and the judgment and decree of the trial court was affirmed so far as the title of the plaintiffs to the suit land was concerned. However, the judgment and decree was modified to the extent that instead of passing a decree for permanent injunction in favour of the plaintiffs, the suit was decreed in addition to declaration of title for possession of the suit land on the basis of title. Hence, this Regular Second Appeal against the judgment and decree dated 19.2.2007. 6. This Regular Second Appeal was admitted on the following substantial questions of law: 1. Whether once the learned first appellate court below has held that the suit land is in possession of the 7 defendant/appellant, being a prospective vendee, in pursuance to the documents Ex.DW-2/A and Ex.DW- 2/B, executed on 25.4.1970 and 9.2.1975, respectively, it has erred gravely by holding that the rights of the defendant/appellant are not protected under Section 53(A) of the Transfer of Property Act? 2. Whether the suit of the plaintiffs/respondents is time barred, in view of the fact that the defendant/appellant is in possession of the suit land since 25.4.1970 and the plaintiffs have filed the present suit on 27.3.2001 much beyond the period of limitation? 3. Whether even if the plaintiffs/respondents have not filed any appeal against the judgment and decree dated 30.5.2006 passed by the learned trial court below wherein the relief of possession was declined to the plaintiffs, the learned first appellate court below has exceed to its jurisdiction by granting such relied to the plaintiffs/respondents, in the appeal preferred by the appellant/defendant? 7. Plaintiffs have also filed cross-objections under order 41 rule 22 of the Code of Civil Procedure bearing C.O. No. 218/2007 with a prayer that the judgment and decree of the learned trial court be restored. 8. Mr. G.D. Verma, Senior Advocate has strenuously argued that both the courts below have not taken into consideration well settled principles of law. He then contended that there is misreading and mis- appreciation of the oral as well as documentary evidence by both the courts below. 8 9. Mr. B.B. Vaid has supported the judgment of the trial court and cross-objections with the prayer that the judgment of the trial court be restored. According to him, defendant was never put in possession of the suit land by Lachhmi Singh. 10. I have heard the learned counsel for the parties and have perused the pleadings carefully. 11. Since all the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. 12. Plaintiff No.3 Lachhmi Singh has examined himself as PW-1. He has deposed that suit land was in his exclusive possession as ‘Hissadari’. It was otherwise owned by the plaintiffs. He has further deposed that in the year 1971 he had taken a loan of ` one thousand from the defendant. Defendant obtained his signatures on a stamp paper. It was blank. He has admitted his signatures on the same. It is further stated by him that he subsequently returned the amount of ` 1,000/- and he never agreed to sell the suit land and the suit land was never mortgaged with the defendant. In his cross-examination, he has admitted that he has studied upto 7th class. He did not know if the 9 Patwari records Khasra Girdawari by coming to the spot. He denied that when he did not return the amount of ` 1,000/-, then further endorsement was made on the document mark ‘X’ by the witness. It is also denied by him that thereafter he got the possession of the defendant over the suit land recorded. 13. PW-2 Chander Shekhar Patwari has proved the Nakal Rojnamcha Ex.PW-2/A. He has stated that as per Ex.PW-2/A, owners were not present at that time. 14. PW-3 is plaintiff Ram Swaroop. He has reiterated that the suit land was in possession of Lachhmi Singh though it was owned by all of them. Lachhmi Singh obtained copies of revenue records from the Patwari in the month of July, 2000 and then came to know about the wrong entries of possession in favour of the defendant. 15. PW-4 is plaintiff Hari Chand. He has deposed that the suit land was owned by the plaintiffs though it was cultivated by Lachhmi Singh exclusively. 16. PW-5 Rajinder Kumar is the son of plaintiff Lachhmi Singh. He has deposed that his father had taken ` 1,000/- as loan from the defendant in the year 1970. Later on, defendant started demanding ` 4,12,000/-. In his 10 cross-examination he deposed that his father told that the amount has been returned to the defendant. 17. Defendant has appeared as DW-1. According to him, Lachhmi Singh had agreed to sell 2-7 bighas of land for ` 1,000/-. He gave a sum of ` 1,000/- to Lachhmi Singh and a document was prepared at that time. According to him, possession of the suit land was handed over to him in the year 1970. Thereafter, an endorsement was also made on the document in the year 1975. He was in possession of the suit land. In his cross-examination, he has deposed that it was agreed between the parties that if Lachhmi Singh did not get the sale deed executed then he would return the amount of ` 1,000/- alongwith interest. He has admitted that Het Ram and Mehar Singh were also co-owners of the land. He has also admitted that he has not served upon any notice in writing upon Lachhmi Singh (plaintiff No.3) about the sale. 18. DW-2 Rajinder Sharma has testified that Narain Dutt Shastri was his father. He died on 4.6.1999. He has identified the handwriting of his father on Ex.DW-2/A and Ex.DW-2/B. In his cross-examination, he has deposed that he did not know if Ex.DW-2/A was got signed from Lachhmi Singh when it was blank. 11 19. DW-3 Ram Saran has deposed that he was called about 35 years back by the defendant in order to make payment to Lachhmi Singh. Narain Dutt Shastri prepared writing and the defendant gave ` 1,000/- to Lachhmi Singh, who assured to execute sale deed of the suit land later on. He identified his signatures on Ex.DW-2/A. Later on, after 5 years, further endorsement Ex.DW-2/B was made on the aforesaid document in his presence. According to him, defendant was cultivating the suit land. 20. In jamabandi for the year 1971-72, Ex.PW-1/C and 1996-97 Ex.PW-1/D, the land is shown in the ownership of the plaintiffs. In cross-examination, defendant has deposed that it was settled between him and Lachhmi Singh that if the sale deed of the suit land was not executed then he would return the amount of ` 1,000/- alongwith interest. There is endorsement made on the top of Ex.DW-2/A that it was an agreement of sale. According to the contents of Ex.DW-2/A, Lachhmi Singh, plaintiff No.3, had executed an agreement in favour of the defendant. Ex.DW-2/B is a writing allegedly made by plaintiff No.3, Lachhmi Singh in favour of the defendant on 9.2.1975. It is evident from the recital of document dated 9.2.1975 that Lachhmi Singh had agreed to sell the suit land. In case the suit land had 12 already been transferred by way of oral sale in the year 1970, there was no necessity to execute documents on 25.4.1970 and 9.2.1975. Similarly, if the defendant had already become the owner by way of sale in the year 1970, there was no necessity to get the agreement executed from Lachhmi Singh on 9.2.1975. Plaintiff No.3 Lachhmi Singh had merely executed an agreement in respect of the suit land in favour of the defendant. Moreover, plaintiff No.3, Lachhmi Singh was not absolute owner of the suit land in the year 1970. Thus, he was also not competent to transfer the suit land by way of oral sale in favour of the defendant. Both the courts below have rightly come to a conclusion that the plaintiffs were joint owners of the suit land. 21. Mr. G.D. Verma has strenuously argued that the defendant was put in possession of the suit land. Mr. B.B. Vaid has vehemently argued that defendant was never put in possession by Lachhmi Singh. Learned Civil Judge (Senior Division) has returned findings that the defendant was never put in possession by plaintiff No.3. The findings recorded by the learned District Judge are that the suit land was in possession of the defendant being a prospective vendee. 22. Now, the Court will advert to the documentary evidence placed on record by the parties to determine who 13 was in possession of the suit land. In Ex.PW-1/C, defendant was recorded in possession of the suit land as “Gair Maurusi. However, in the column of rent the words recorded are “Bila Lagan Bavja Bai”. The same entry is recorded in the jamabandi for the year 1995-96 and 1996-97. In column No. 4 of the Jamabandi, defendant has been recorded in possession of the suit land as “Gair Maurusi” but in column No.9, the words mentioned are “Bila Lagan Baveja Bai”. It is thus not evident whether the defendant was tenant of the suit land or he was owner of the suit land by way of sale. These entries have been made on the basis of the report recorded in the Rapat Roznamacha on 5.10.1971. This report is Ex.PW-2/A. There is no evidence on record to establish that the entry in Rapat Roznamacha was recorded in the presence of the owner of the suit land. PW-2 Chander Shekhar Patwari has categorically testified that as per Ex.PW-2/A, the owners were not present at the time of making entries. Defendant has also not placed on record any order of the competent authority for recording the name of the defendant in the column of possession over the suit land. The defendant claims himself to be the owner of the suit land but, as discussed hereinabove, in column No.4 of the jamabandi, he is shown in possession of the suit land, as 14 tenant. There is no tangible material placed on record by the defendant to establish that the possession was handed over to him by plaintiff Lachhmi Singh. Defendant has not led any evidence to prove his adverse possession over the suit land. He has stated that he has been coming in possession of the suit land since 1970 by way of sale. In case defendant claims himself to be the owner of the suit land, he could not take the plea of adverse possession. The plea of adverse possession is to be taken specifically and is required to be proved by leading cogent evidence. In case the defendant had been put in possession by the plaintiff at the time of oral sale, there was no occasion for him to have got executed agreement Ex.DW-2/A and Ex.DW-2/B. 23. Consequently, it is held on the basis of oral as well as documentary evidence led by the parties that the defendant was not put in possession of the suit land. The findings recorded by the learned District Judge to the contrary are liable to be set aside. The findings recorded by the learned Civil Judge (Senior Division) are upheld. Since the defendant has not taken the plea of part performance in written statement, the same cannot be permitted to be taken at this belated stage. 15 24. Accordingly, in view of the observations made hereinabove, there is no merit in the Regular Second Appeal and the same is dismissed. The cross-objections No. 218/2007 are allowed. Judgment and decree of the learned Civil Judge (Senior Division) is restored in its entirety. There shall, however, be no order as to costs. (Justice Rajiv Sharma), Judge. April 28, 2011 *awasthi*