IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 453 of 2000 Judgment reserved on 5.5.2010 Date of decision : 18.6.2010 Ms. Reeta Devi and others ….. Appellants. Vs. Ravinder and others …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellants : Mr. Ramakant Sharma, Advocate. For the Respondents : Mr. Raman Sethi, Advocate. Kuldip Singh, J Halku predecessor-in-interest of the appellants had filed Civil Suit No.97/92 for declaration and possession which was dismissed by learned Sub Judge Ist Class (1) Palampur on 11.8.1998. Civil Appeal No.83-P/XIII-1998 filed by Halku was also dismissed by learned District Judge, Kangra at Dharamshala on 4.5.2000. Thereafter Halku had filed second appeal against judgment, decree dated 4.5.2000, he died during the pendency of second appeal and his legal representatives were brought on record. 2. The facts in brief are that Halku had filed suit regarding land comprised in khata No.29 min, khatauni No.76 min, khasra Nos.31/3, 52/2, 52/3, measuring 6 kanals, Tikka Kotli, Mouza Bir, Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… Tehsil Baijnath on the grounds that suit land was purchased by him through his father for consideration of Rs.1000/- from Ram Krishan vide registered sale deed dated 17.12.1968. Ram Krishan had received Rs.855/- at the time of registration of the sale deed and it was agreed that remaining amount of Rs.145/- would be paid at the time of attestation of mutation. The possession of the suit land was delivered to appellant. The suit land has been given khasra No.219 new. 3. It has been alleged that Ram Krishan vendor had died after the execution of the sale deed and therefore, mutation could not be attested of the suit land on the basis of sale deed dated 17.12.1968 after the death of Ram Krishan. Mangat Ram son of Ram Krishan was requested by Halku to get the mutation attested but in vain. Mangat Ram also died, his successors were also requested to get the mutation attested but they also refused. The successors of Mangat Ram had transferred some part of the suit land in favour of respondent No.5. The plaint was amended and it was pleaded that in the end of the 1992 the respondents took forcible possession of the suit land and therefore, prayer for possession and declaration was made. 4. The suit was contested by respondents. They took preliminary objections of limitation, estoppel, jurisdiction, maintainability, mis-joinder, non-joinder of necessary parties. On merits, they denied that their predecessor-in-interest had sold the suit land vide sale deed dated 17.12.1968. The appellant had not paid Rs.145/-, the complete sale consideration amount was not passed , …3… therefore, possession was also not delivered to appellant. The sale remained incomplete. It was pleaded that respondents are in possession of the suit land as owners, apart from the suit land measuring 0-07-74 hectares, land comprised in khasra No.219/2 was sold to respondent No.5 Bhumi Chand and possession was delivered to him. 5. In replication, the stand of respondents was denied and averments made in the plaint were reasserted. On the pleadings of the parties, the following issues were framed:- 1. Whether the suit land has been purchased by the plaintiff from Ram Krishan on 17.12.1968 against consideration of Rs.1000/- as alleged ? OPP 2. If issue No.1 if proved in affirmative, whether the plaintiff is owner in possession of the suit land, as alleged? OPP 3. Whether the plaintiff is entitled to get the relief of injunction, as prayed for? OPP 4. Whether the plaintiff is entitled to the relief of possession of the suit land in the alternative as alleged? OPP 5. Whether the suit is not within time? OPD 6. Whether the act and conduct of the plaintiff are bar to the present suit? OPD 7. Whether this Court has no jurisdiction to try this suit? OPD 8. Whether the suit is not maintainable in the present form? OPD 9. Whether the suit is bad for non-joinder and mis-joinder of necessary parties ? OPD 10. Relief The issues No.1 to 4 were answered in negative, issues No.5 to 9 were not pressed and the suit was dismissed on 11.8.1998. The judgment, decree dated 11.8.1998 was challenged before learned lower appellate Court, an application under Order 41 Rule 27 read with Section 151 CPC was filed in lower appellate Court by Halku. The learned lower appellate Court dismissed the application …4… for additional evidence and the appeal on 4.5.2000. The second appeal has been admitted on following substantial questions of law:- 1. Whether the judgments and decree passed by learned courts below are contrary to the pleadings of the parties and findings given are perverse and have resulted in erroneous decisions? 2. Whether the application under Order 41 Rule 27 CPC for additional evidence has wrongly been rejected by the learned Appellate Court below and the rejection is contrary to the judicially settled principles of law in this behalf and the same has caused substantial injustice to the appellant/plaintiff? 3. Whether the dismissal of the suit is contrary to the findings of the learned Appellate Court with regard to the execution of valid Sale deed and as such, the judgment and decree passed by the learned Appellate Court is unsustainable in the eyes of law? 6. I have heard Mr. Ramakant Sharma, Advocate learned counsel for the appellants and Mr. Raman Sethi, Advocate learned counsel for the respondents and have also gone through the record. On behalf of the appellants, it has been submitted that the Courts below have misconstrued the pleadings and evidence. The impugned judgement, decree are perverse. The appellants are entitled to decree of declaration of ownership and possession of the suit land. The appellants have proved that their predecessor-in- interest Halku had purchased the suit land vide sale deed dated 17.12.1968 Ex.PW1/A. The learned District Judge has erred in dismissing the appeal even though the validity of sale deed Ex.PW-1/A was accepted. The additional evidence application of the appellant was wrongly rejected by the learned lower appellate Court. The learned counsel for the respondents has supported the impugned …5… judgment, decree. He has submitted that the learned lower appellate Court has rightly rejected the application for additional evidence. The suit land has not been connected with the sale deed Ex.PW-1/A. The appellant has miserably failed to prove that his predecessor-in- interest had purchased the suit land. He has submitted that no fault can be found with the impugned judgment, decree. 7. The substantial question of law No.2 is taken first. Halku predecessor-in-interest of appellant in the learned lower appellate Court had filed an application under Order 41 Rule 27 read with Section 151 CPC for proving jamabandi for the year 1963-64. It has been alleged in the application that applicant was not in the knowledge and possession of the jamabandi in question. It has also been alleged that despite exercise of due diligence on the part of the applicant he could not produce the said jamabandi earlier. He could not produce the said jamabandi earlier. 8. In the plaint dated 20.4.1992, it has been pleaded that plaintiff through his father had purchased land comprised in khasra No.31/3, 52/3, and 53/3, measuring 6 kanals 6 marlas vide jamabandi for the year 1963-64. In other words while preparing plaint the predecessor-in-interest of the plaintiff was very much aware of the jamabandi for the year 1963-64 on the basis of which plaint was prepared. The averment of predecessor-in-interest of the appellants in the application for additional evidence filed in the learned lower appellate Court that he was not in the knowledge of possession of jamabandi in question is false in as much as the plaint itself has been drafted on the basis of jamabandi for the year 1963-64. The false …6… averment made in the application for additional evidence to the effect that Halku was not aware of jamabandi for the year 1963-64 in itself is sufficient to reject the application. In view of false stand taken by predecessor-in-interest of the appellants in the application for additional evidence, the appellants are not entitled to lead additional evidence. The learned District Judge has rightly rejected the application for additional evidence. The substantial question of law No.2 is decided against the appellants. 9. The substantial questions of law No.1 and 3 are interconnected and therefore, both the substantial questions of law are taken up collectively for disposal. The sale deed Ex.PW-1/A has been proved. The question involved is whether old khasra Nos.31/3, 52/2 and 52/3 are equivalent to new khasra No.219. In sale deed Ex.PW-1/A, khasra Nos.31/3, 52/2 and 52/3, kitas 3, measuring 6 kanals 6 marlas have been referred. Ex.P-2 is the copy of jamabandi for the year 1986-87 in which Mangat Ram has been shown to be owner in possession of new khasra No.219. In Ex.PZ Missal Haquiat Bandobast for the year 1981-82 Mangat Ram has been shown owner in possession of new khasra No.219. In Ex.PZ, new khasra No. 219 has not been shown equivalent to old khasra Nos.31/3, 52/2, 52/3. In Ex.PY jamabandi for the year 1968-69 khasra Nos. 437/51, 408/52 and 409/52 are shown to be in possession and ownership of Ram Krishan. There is no clarity about the khasra No.219. In Ex.PZ, khasra No.219 measuring 0-35-39 hectares has been shown equivalent to khasra No.408/52, 409/52 and 437/51. In Ex.P-4 missal haquiat bandobast khasra No.219 …7… measuring 0-35-39 hectares has been shown equivalent to khasra Nos.408/52, 437/51. In Ex.P-4 there is no reference of khasra No.409/52. 10. The appellants have miserably failed to prove that new khasra No.219 is equivalent to old khasra Nos. 31/3, 52/2 and 52/3. The learned District Judge after considering the evidence on record has rightly recorded a finding of fact that it cannot be said that the suit land was purchased by plaintiff from the predecessor-in-interest of defendants No.1 to 4. The sale deed Ex.PW-1/A has been proved but the identity of the suit land comprised in khasra No.219 has not been established through sale deed Ex.PW-1/A. There is no perversity in the impugned judgment, decree. The learned counsel for the appellants has failed to make out a case for interference. The substantial questions of law No.1 and 3 are decided against the appellant. 11. No other point was urged. 12. The result of the above discussion, appeal fails and is accordingly dismissed. June 18, 2009. ( Kuldip Singh ) (sks) Judge.