IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 500 of 2000. Judgment reserved on : 26.04.2011. Date of decision: 13.05.2011. Balak Ram & Anr. ….. Appellants. Versus Sarla Devi & Ors. …. Respondents. _________________________________________________________ For the Appellants : Mr. Romesh Verma, Advocate. For the Respondents : Mr. I.S. Chandel, Advocate. No.1 (a) and 1(b) Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No Kuldip Singh, Judge . The defendants 1 and 2 are in second appeal in which they have assailed judgment, decree dated 01.07.2000 passed by learned District Judge, Shimla , in Civil Appeal No. 2-S/13 of 1998 affirming judgment, decree dated 29.11.1997 passed by learned Sub Judge (3), Shimla , in case No. 246/1 of 1996/1990. 2. The facts, in brief, are that Med Ram, predecessor-in- interest of respondents 1(a), 1(b) had filed a suit for declaration that suit land described in the plaint was jointly owned by him and appellants, so also proforma respondents 2, 3. The share of Med Ram in the suit land was 1/4th and the share of appellants was 1/4th. The remaining half share belonged to proforma respondents 2 and 3. He had prayed a decree of joint possession in his favour and against Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 appellants. He approached appellants for separation of his share by way of partition, but they refused. 3. The proforma respondent No.2 was proceeded ex-parte. The suit was contested by appellants. On the objections of appellants, proforma respondent No. 4 Paras Ram was impleaded as defendant No.5 in this suit, who filed separate written statement. The appellants in their written statement took several preliminary objections such as valuation of the suit, non-joinder of necessary parties, estoppel, maintainability, parties had already partitioned their property and the suit property had fallen to the shares of appellants. On merits, the appellants took the plea that a private partition had taken place in the year 1957-58 and the suit land had fallen to their shares and since then they are in possession of the suit land. In the alternative, the appellants have taken the plea of adverse possession since the year 1958. 4. The proforma respondent No.3 supported the case of appellants that the partition had already taken place and the suit land had fallen to the shares of appellants. Proforma respondent No.4 took the plea that he was also a co-sharer in the suit land and that the determination of the share of Med Ram was subject to the share of proforma respondent No.4 in the suit land. 5. The replications were filed. On the pleadings of the parties, the following issues were framed:- 1. Whether the suit property has been privately partitioned, if so, its effect? ….OPD. 2. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? …OPD. 3 3. Whether the suit is bad for misjoinder for necessary parties? …OPD. 4. Whether the plaintiff is estopped from filing the present suit? ….OPD. 5. Whether this court has no jurisdiction to try the present suit? ….OPD 6. Whether the defendants are in the special costs under Section 35 A C.P.C.? …OPD. 6.A. Whether the defendants have perfecting their title over the suit land by way of adverse possession? …OPD. 7. Relief. All the issues were decided in favour of the plaintiff and the suit was decreed as per operative part of judgment dated 29.11.1997. The matter was carried in appeal and the appeal was dismissed on 01.07.2000, hence, second appeal. 6. The second appeal has been admitted on the following substantial questions of law:- 1. Whether the defendant No.4 having admitted the claim of the appellants (defendants No.1 and 2), the findings qua her share were required to be recorded in favour of the appellants? 2. Whether the plea of private partition having been pleaded and proved on record have wrongly been decided by both the Courts below? 4 3. Whether the plea of adverse possession as raised on behalf of the appellants have neither been considered nor determined by both the Courts below and therefore they have failed to exercise jurisdiction in accordance with law? 4. Whether in the absence of name of Respondent No.4 Sh. Paras Ram in the revenue record and having been excluded in mutation Ex. PW-1/B attested on 30.7.76 whereby ownership rights were conferred on other brothers therefore no reliance can be placed on the revenue record? 7. I have heard learned counsel for the parties and have also gone through the record. The learned counsel for the appellants has submitted that two Courts below have erred in decreeing the suit of Med Ram. The proforma respondent No.3 had admitted the claim of the appellants, therefore, her share was required to be recorded in favour of the appellants. The plea of private partition has not been considered properly, so also the plea of adverse possession. The name of proforma respondent No. 4 Paras Ram was wrongly excluded at the time of attestation of mutation and, therefore, revenue record after the attestation of the mutation cannot be relied. The learned counsel for respondents 1(a) and 1(b) has supported the impugned judgment, decree and has prayed for dismissal of the appeal. 8. The proforma respondent No. 3 was the defendant No.4 in the suit. It has been submitted on behalf of the appellants that in the partition which took place 32 years ago the suit land fell to the share of Ganga Dutt, father of appellants, and since then it is in 5 possession of appellants through their father. The proforma respondent No.3 in her written statement has prayed for dismissal of the suit. It has been submitted that in view of stand of proforma respondent No.3 the appellants are entitled to her share in the suit land. In the suit filed by predecessor-in-interest of respondents 1(a), 1(b), no relief can be granted to appellants merely on the alleged admission of claim of appellants by proforma respondent No.3. There is no counter-claim of appellants against the predecessor-in-interest of respondents 1(a), 1(b) and proforma respondent No.3. The so- called admission of proforma respondent No.3 in her written statement is no ground to give her share to appellants in the suit filed by predecessor-in-interest of respondents 1(a), 1(b). The substantial question of law No.1 is decided against the appellants. 9. The suit land is situated in mauza Kuni which was tenancy land as per Ex. DW1/B jamabandi 1955-56. The other land is in mauza Badlawag. The case of the appellants is that their grandfather Ram Sahay had two wives. He had two sons Ganga Dutt and Shibia from first wife and Med Ram, Molak Ram, Paras Ram, Parma Nand sons from second wife. It is the case of the appellants that sons of Ram Sahay from different wives partitioned their land situated in mauza Kuni and mauza Badlawag. Med Ram, Paras Ram, Parma Nand and Molak Ram got the property situated at mauza Badlawag, whereas, Ganga Dutt and Shibia got the suit property. The appellants are the sons of Ganga Dutt and Shibia had died issueless. 10. Exhibit CX is the copy of jamabandi 1986-87 mauza Badlawag of land measuring 35 bighas owned and possessed by 6 Balak Ram, Bihari Lal, Vidya, Uday Ram, Paras Ram, Mathi, Suni, Kewal Ram, Bhaskra Nand successors of Ram Sahay. In the jamabandi Layak Ram, Bhup Ram and Basanti are also shown owners in possession along with aforesaid persons. In jamabandi Ex. DW1/B the suit land is recorded in the ownership of the government and under the tenancy of Ganga Dutt, Shibu, Parma, Molak Ram, Medu, all sons of Ram Sahay. On 30.07.1976, mutation No. 52 Ex. PW1/B conferring proprietary rights under Section 104 of H.P. Tenancy and Land Reforms Act was attested in favour of Balak Ram, Bihari, one share in equal share, Parma , Molak Ram and Medu three shares. Exhibit DW1/C is the copy of jamabandi 1983-84 showing Balak Ram, Bihari equal shares one share, Smt. Vidya Devi one share, Molak Ram, Medu equal shares two shares as owners, but Balak Ram and Bihari are shown in possession of the suit land. Exhibit PW1/C is the copy of jamabandi 1993-94 of the suit land showing the same position as in jamabandi 1983-84. 11. The aforesaid documentary evidence belies the stand of the appellants that the partition took place and suit land was allotted to them as alleged. The appellants are shown co-owners in the land situate at mauza Kuni as well as in land situate at mauza Badlawag. The proprietary rights were conferred under Section 104 on 30.07.1976 jointly in favour of appellants and others. There is nothing on record to show that appellants at any point of time objected to the grant of proprietary rights. It is also not on record that appellants at any time after alleged partition took steps and brought to the notice of the revenue authorities to give effect to the alleged partition in the revenue record. The oral evidence of the appellants regarding 7 alleged partition is not believeable in the presence of consistent revenue record negating partition. The learned District Judge has considered the entire record and recorded a finding that no partition took place as claimed by appellants. The view taken by learned District Judge is in consonance with the evidence on record. It has not been pointed out that any material evidence which goes to the root of the case has been ignored or the finding is based upon inadmissible evidence. The appellants have failed to establish partition in which suit land fell to their shares. The substantial question of law No. 2 is decided against the appellants. 12. The issue No. 6-A of adverse possession was decided by learned Trial Court against the appellants. In the grounds of appeal in lower Appellate Court, no specific ground has been taken regarding the findings of learned Trial Court on issue No. 6-A. The appeal in the lower Appellate Court was argued on the point of partition. In the grounds of appeal, it has been stated that plea of adverse possession was taken before the learned District Judge, but he has failed to consider and decide the same. It has not been pointed out that any application was filed before learned District Judge after impugned judgment bringing to his notice that the plea of adverse possession was argued before learned District Judge, but he has not considered that plea. In absence of this procedure, it is not possible to believe that the plea of adverse possession was argued before learned District Judge when in the impugned judgment there is no reference of the plea of adverse possession. In any case in the revenue record noticed above, the appellants are recorded in possession of the suit land as co-sharers. The appellants have failed to prove ouster of 8 respondents 1(a), 1(b) and hostile animus in order to prove adverse possession. The evidence led by the appellants on the adverse possession is not of such nature which establishes their hostile, peaceful possession on the suit land to the exclusion of other co- sharers. The substantial question of law No. 3 is decided against the appellants. 13. It is the common case of the parties that Paras Ram, proforma respondent No. 4, is one of the sons of Ram Sahay. In the written statement Paras Ram has pleaded that Med Ram plaintiff was a co-sharer in the suit land. The determination of share of Med Ram is subject to the right of Paras Ram being the brother of Med Ram. He has also stated that he has no objection for decreeing the suit keeping in view his right. 14. In Ex. DW1/B jamabandi 1955-56 Ganga Dutt, Shibu, Parma, Molak Ram, Medu sons of Ram Sahay have been shown as tenants in equal shares. In Ex. DW1/B Paras Ram has not been shown as tenant. The mutation Ex. PW1/B of conferring proprietary rights, name of Paras Ram is missing. In written statement Paras Ram has not projected the case that after Ram Sahay father, he along with his brothers was entitled to inherit the tenancy of Ram Sahay. The proprietary rights have been conferred on others and not on Paras Ram. The mutation Ex. PW1/B has attained finality. It is not the case of Paras Ram that mutation Ex. PW1/B was attested without notice to him and in violation of mandatory provisions of law. In these circumstances, after attestation of the mutation Ex. PW1/B, it is too late to say that Paras Ram is also a co-sharer in the suit land. Paras Ram has never challenged the mutation Ex. PW1/B. The revenue 9 record after attestation of mutation Ex. PW1/B in which the name of Paras Ram has not been shown as a co-sharer on the suit land cannot be said to be wrong. Hence, substantial question of law No. 4 is decided against the appellants. 15. In view of above discussion, there is no merit in the appeal which is dismissed with no order as to costs. May 13, 2011. (Kuldip Singh), ( krt) Judge.