IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 488/2006 Reserved on: 20.4.2011 Decided on:25.5.2011 _____________________________________________ Sher Singh and others. …Appellants. Versus Khullu. …Respondent. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the appellants : Mr. G.R. Palsra, Advocate. For the Respondent : Mr. S.C. Sharma, Advocate. _____________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 10.10.2006 passed by the learned District Judge, Mandi in Civil Appeal No.15 of 2006. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that appellant-plaintiff, Sher Singh, (hereinafter referred to as ‘plaintiff’ for convenience sake) instituted a suit against the respondent-defendant (hereinafter referred to as ‘defendant’ for convenience sake). Appellants No. 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 2 to 5 were also added as proforma defendant in civil suit No.84 of 2002. The suit was filed for declaration to the effect that transfer of the suit land on the basis of mutation No. 267 in favour of defendant was result of fraud and the plaintiff and proforma defendants were still owners in possession of the suit land with a decree for permanent prohibitory injunction restraining the defendant from interfering in the possession of the plaintiff. It was averred that the plaintiff and proforma defendants were recorded as joint owners in possession of the land comprised in Khewat Khatauni No. 41min/43min, Khasra No. 370 measuring 0-18-2 bighas to the extent of ½ share, as per jamabandi for the year 1995-96. The land was never sold by the plaintiff or proforma defendants to the defendant nor they executed any document in favour of the defendant. He came to know on 18.9.2001 that their share in the suit land stood transferred in favour of defendant, namely, Khullu, as per jamabandi for the year 1995-96 vide mutation No. 267. According to him, the transfer of land was illegal, null and void and was outcome of fraud. 3. Defendant filed a written statement. According to him, he was recorded as owner in possession of column in the capacity of purchaser, as per jamabandi for the year 1995-96. According to him, in fact Beli Ram, father of the plaintiff, had 3 sold land comprised in Khata Khatauni No. 16/40 measuring 15-3-16 bighas in which said Beli Ram was having 1/8th share and in the column of possession was recorded in possession of ½ share in respect of khasra No. 419 measuring 0-17-17 bighas situated in Mauja Lehra, Tehsil Sadar, District Mandi in his favour vide registered sale deed No. 197 dated 17.6.1977. Thereafter the mutation bearing 267 was also attested in his favour on 10.8.1992. He was entitled to possession of the suit land on the basis of the registered sale deed. The plaintiff filed replication. Trial court framed the issues on 2.4.2004. Trial court decreed the suit filed by plaintiff vide judgment and decree dated 23.12.2005. Plaintiff and the proforma and defendants were declared join owners in possession of the land situated at village Muhal Lehra/131, Illaqua Bagra, Tehsil Sadar, District Mandi comprising of Khewat Khatauni No. 41min/43min, Khasra No. 370, measuring 0-18-2 bighas. The revenue entries showing the defendant to be in possession of the suit land, as purchaser was declared null and void. 4. Defendant feeling aggrieved by the judgment and decree dated 23.12.2005 preferred an appeal before the learned District Judge, Mandi. He allowed the same on 10.10.2006. The judgment and decree dated 23.12.2005 passed by the learned Civil Judge (Junior Division), Court No.2, Mandi was set aside. 4 Hence, the present Regular Second Appeal. It was admitted on substantial questions of law No.1 and 2 formulated at page 9 of the paper-book. 5. Mr. G.R. Palsra has supported the judgment of the trial court. 6. Mr. S.C. Sharma has supported the judgment of the first appellate court. 7. I have heard the learned counsel for the parties and have perused the record carefully. 8. Since both 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. 9. Plaintiff has appeared as PW-1. According to him, his father died on 8.9.1978. The suit land previously belonged to Bhagat Ram and Kharaku. The share of the plaintiff over the suit land was about 17 biswas. The same was never sold in favour of defendant. According to him, his father has mortgaged his share on 17.6.1977 for consideration of ` 1,000/-. In this regard mutation is dated 15.6.1978, which was renewed on 10.8.1992. At that time he was 14 years old. According to him, he was in possession of the suit land. He has also admitted that the suit land was subject matter of consolidation in the year 5 1988. His father was knowing Hindi and English. He came to know about the entries about one year prior to 18.9.2001 that the suit land was mortgaged with Khullu. He has denied signatures of his father on sale deed Ex. D-1 dated 17.6.1977. He, however, has admitted the signatures of his father on Ex.D- 1/A, Ex.D-1/B and Ex.D-1/C. He denied the suggestion that Khasra No. 370 was in possession of Khullu and in lieu of Khasra No. 419 after consolidation Khasra No. 370 was allotted. 10. Defendant has appeared as DW-1. He deposed that in the year 1977, he purchased 0-17-17 bighas of land from Beli Ram son of Kharku. Possession was handed over to him and in the year 1992, mutation was sanctioned in his favour. 11. DW-2 Chhering was marginal witness of sale deed Ex.D-1. He testified that Beli Ram had executed sale deed in favour of defendant. He has identified his signatures within red circle Ex.DW-2/A. He has identified both the parties. DW-3 Devi Saran has supported the version of defendant qua possession. 12. It is evident from para 14 of the judgment of the learned District Judge that the learned counsel appearing on behalf of the plaintiff did not dispute the execution of the sale deed dated 17.6.1977 Ex.D-1 executed by Beli Ram in favour of Khullu in respect of khasra No. 419. A bare perusal of Ex.PG 6 reveals that the Revenue Officer sanctioned mutation No. 116 in respect of mortgage effected vide registration No. 197 dated 17.6.1977. According to this, the mutation was in respect of ½ share of Khasra No. 419, measuring 1-15-14 bighas for consideration of ` 1,000/-. However, the mutation pertained to sale deed dated 17.6.1977 Ex.D-1 executed by Beli Ram in favour of Khullu Ram. It is evident from Ex.D-1 that on the last page, registration number has been mentioned as 197. It was not the case of the parties that mortgage was executed on 17.6.1977 by Beli Ram, predecessor-in-interest of the plaintiff, in favour of defendant in respect of Khasra No. 419. The Revenue Officer should not have mentioned the word ‘mortgage’ in registered document dated 17.6.1977. In fact, it was a sale deed. It is also admitted fact that the consolidation proceedings commenced in the area. After the consolidation, new Shajra Latha was prepared resulting in creation of new khasra numbers, which may or may not correspond to old khasra number. In Ex.D-2, khasra No. 419 measuring 1-15-14 bighas was recorded in the name of Bhagat Ram and Kharaku ½ share and the remaining ½ share was recorded in the name of Budhu son of Chitaru. Thus, father of Beli Ram, i.e. Kharaku was having 1/4th share in the joint khata as per jamabandi for the year 1977-78. After the death of Kharaku, name of Beli Ram was substituted. 7 Defendant had applied for correction of entries in the jamabandi. The Consolidation Officer on the basis of the record vide mutation No. 267 dated 10.8.1992 Ex.PA or Ex.D-6, ordered the correction of entry in his favour. It is evident from Ex.PA or Ex.D-6 that the Revenue Officer has observed that in fact vide registered deed dated 17.6.1977, the predecessor-in-interest of the plaintiff, namely, Beli Ram has effected the sale deed though the mutation was initially sanctioned vide Ex. PG as mortgagee. There is also mention of the sale consideration of ` 1,000/- in mutation Ex.PA or Ex.D-6 and the suit land is recorded as khasra No. 370 measuring 0-18-2 bighas. According to jamabandi Ex.PJ, old khasra No.419 min was shown by new khasra Nos. 367, 366 and 364 and the same were allotted to Dhani Ram, Masat Ram and Dolma etc. who were previously having joint khata with the plaintiff and the proforma defendants. According to Jamabandi Ex.PH, old khasra No. 421 min is denoted by new khasra No. 370 and 369. The learned first appellate court has come to a just conclusion that the mortgaged land, which was sanctioned in favour of defendant vide mutation No. 116 (Ex.PG), was in fact the same land, which was denoted by khasra No. 370 measuring 0-18-2 bighas and which was sold vide sale deed Ex.D-1. 8 13. The Consolidation Officer has also made observation that Khasra No. 370 measuring 0-18-2 bighas, as per jamabandi for the year 1995-96, was the same land which was the subject matter of sale deed No. 197 dated 17.6.1977 sold by Beli Ram for consideration of ` 1,000/- in favour of defendant. The version of the defendant has also been supported by jamabandi for the year 1995-96 (Ex.D-5). The defendant has been given land in consolidation in lieu of khasra No. 419, the land comprised in Khasra No. 370 measuring 0-18-2 bighas. The learned first appellate court has correctly appreciated the oral as well as documentary evidence produced by the parties. The findings recorded by the learned first appellate court that the predecessor-in-interest of the plaintiff has sold the land comprising khasra No. 370 corresponding to khasra No. 419 to defendant, are correct. The land allotted to defendant after the consolidation is also in accordance with law. 14. Accordingly, in view of the observations made hereinabove, there is no substantial question of law involved in the Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs. (Justice Rajiv Sharma), Judge. 25.5. 2011 *awasthi*