IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: RSA.No.63 of 1996. Reserved on:12.3.2008 Date of Decision : Narpat Ram. …Appellant. Versus: Smt.Rukmani and others. …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for judgment?1 For the appellant: Mr.Bhupinder Gupta, Sr.Advocate with Ms.Charu Gupta, Advocate. . For Respondent-7. Mr.G.D.Verma, Sr.Advocate with Mr.B.C.Verma, Advocate. Sanjay Karol, J. Respondent No.7-Paras Ram son of Sh. Kusla herein (hereinafter referred to as the plaintiff) filed a suit for declaration and permanent prohibitory injunction against the present appellant-Narpat Ram son of Sh. Bakiru as defendant No.1 and Shri Paras Ram son of Shri Narainoo as defendant No.2 predecessor-in-interest of present respondents No. 1 to 6. The suit was filed on the ground that the plaintiff’s father Shri Kusla was the owner in possession of the land measuring 107 bighas comprising in Khata Khatuni No. 31/34, Khasra No. 79 situated in village Kiar, Pargana Kolka, Tehsil Arki, District Solan, H.P. (hereinafter referred to as the land). Vide registered gift deed (Ext.PW- 1/A) dated 30th August, 1977, the plaintiff’s father (Kusla) transferred 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 the land to the plaintiff. But, however in the revenue record as per mutation No. 162 dated 21st November, 1977 the name of the plaintiff’s father was wrongly mentioned as Gursu. The revenue official i.e. Patwari Halqua without the order of the competent authority and in connivance with the defendants changed the revenue record and by putting an arrow inserted the name of Narainoo as father of the Paras Ram and as such the name of plaintiff was substituted with that of defendant No.2 in the revenue record. Thereafter defendant No.2 sold the land to defendant No.1 and on the strength of the same, the plaintiff’s possession was sought to be interfered with. The actions of the defendants were challenged in the suit. While not disputing the fact that the plaintiff’s father Kusla was the owner of the suit land, the defendant No.1, in defence by way of separate written statement took the plea that he was a bonafide purchaser having purchased the land after verification of revenue entries and defendant No.2 claimed ownership by virtue of adverse possession. The fact that the property was sold by defendant No.2 to defendant No.1 was admitted by both the defendants. Based on the pleadings of the parties, the trial Court framed the following issues: 1. Whether the father of the plaintiff Shri Kusla was owner in possession of the suit land, as alleged? …OPP. 2. Whether the father of the plaintiff has gifted the suit land by registered gift deed on dated 30-8-1977 in favour of plaintiff, as alleged?. OPP. 3.Whether the mutation of gift in respect of the suit land was wrongly attested as alleged?. …OPP. 3 4.Whether the defendants in collusion with revenue official has tempered the revenue record, as alleged?. …OPP. 5.Whether the suit is not maintainable, as alleged?. …OPD-1. 6.Whether the defendant No.1 is a bonafide purchaser of the suit land, as alleged?. …OPD-1 7. Whether the suit is time barred as alleged?. …OPDs. 8. Whether the plaintiff has no cause of action to file the present suit, as alleged?. …OPDs. 9. Whether the plaintiff is estopped from filing the present suit against the defendants, as alleged?. …OPDs. 10. Whether in the alternative the defendant No.2 has also become the owner of the suit land by way of adverse possession, as alleged?. …OPD-2. 11. Relief. Suit No.85 of 1991 was decreed by the Sub Judge, Ist Class, Arki, District Solan, H.P. in terms of its judgment and decree dated 15th January, 1994 holding that the revenue entry in the name of defendant No.2 was wrong and incorrect and was a result of conspiracy and in connivance with the revenue officials. The plaintiff was found to be in possession and consequently the suit in its entirety was decreed. Aggrieved by the same, defendant No.1 assailed the said judgment and decree in terms of Civil Appeal No. 6-NS/13/94 titled as Narpat Ram Vs. Paras Ram and others before the District Judge, Solan. The first appellate Court considered the matter in its entirety and after appreciating the evidence and the material on record upheld the findings of fact and dismissed the appeal in terms of judgment and decree dated 28th November, 1995 which is the subject matter of 4 challenge in the present appeal. No appeal was filed by the defendant No.2. The appeal was admitted on the following substantial questions of law: 1.When it is proved on record that at the time of purchase of the property the seller was recorded as owner, could the purchaser raise a valid defence that he being a bonafide purchaser on the basis of revenue entries, could the courts below negative such plea of the defendant in this regard?. 2. Whether the gift deed which is compulsorily registerable document is required to be proved by producing at least one attesting witness to the deed?. I have heard learned counsel for the parties and also perused the record. While making submissions on the basis of various grounds raised in the appeal, the learned senior counsel for the appellant emphatically argued that the trial court decreed the suit with a direction to the Station House Officer, Police Station, Arki to register a criminal case under various sections of the Indian Penal Code has exceeded its jurisdiction rendering the decisions to be perverse and illegal. However, learned senior counsel appearing for respondent No.7 supported the judgment for the reasons set out therein. I have heard the learned counsel for the parties and perused the record. 5 The plaintiff has also placed on record copy of jamabandi for the year 1974-75 (Ext.PW-1/C), copy of jamabandi for the year 1969-70 (Ext.PW-6/F), copy of jamabandi for the year 1964-65 (Ext.PW-6/G), copy of Missal Haquiet Bandobast Zadid (Ext.PW-6/H) and jamabandi for the year 1979-80 (Ext.PW-1/D). There are certain facts emerging from the record: (i) Plaintiff is the son of Kusla and defendant No.2 having the same name is the son of Narainoo. (ii) Gursu was the name of plaintiff’s grand father. (iii) The plaintiff’s father was owner in possession of the suit premises. (iv) The plaintiff’s father executed a registered gift deed ( Ext.PW-1/A) dated 30th August, 1977. (v) Even after the impugned mutation dated 21st November, 1977 the plaintiff’s name with correct parentage continued to be reflected in the revenue record. Except for the isolated entry Ext.PW-1/B, there is documentary evidence to prove the ownership and possession of either the plaintiff’s father Kusla or the plaintiff himself. (vi) In the year 1968-69 defendant No.2 had sold his entire land in the village in question and in terms of his application Ext.PW-7/A as a landless person had applied for the benefits under the `Antodeya Scheme’. The plaintiff’s witnesses, six in number, have proved on record the aforesaid facts. There statements are cogent, consistent and reliable. The plaintiff’s plea stands fully corroborated by contemporaneous documentary evidence. Perusal of the impugned revenue entries would reveal that there is a cutting and insertion of the name of Narainoo by putting an arrow. Defendant No. 1 Narpat Ram has admitted the fact that the concerned Patwari of the Halqua used to reside with him and was 6 a close relative of his brother. He has also admitted that the defendants were close relatives. As per mutation No. 145 dated 22nd July, 1968 and jamabandi for the year 1969-79 the land was sold by defendant No.2 to defendant No.1 Importantly, defendant No.2 has not disputed the ownership of either the plaintiff or the plaintiff’s father but, however, has claimed ownership by way of adverse possession. The defence of the said defendant is totally sham and concocted in view of the impeachable and unrebutted evidence on record. He has not even stepped into the witness box to prove his case. The defendant’s witness, namely Sukh Ram (DW-2) and Narpat Ram-defendant No.1 have admitted that the plaintiff had constructed a double storeyed house and is in possession of the suit land. The entries showing the ownership and possession of Kusla and the plaintiff as owner raises presumption which has not been rebutted at all and in fact, keeping in view the stand taken by defendant No.2, the stray entry showing the ownership of defendant No.2 is also not supported by any other contemporaneous document including the field book or order passed by the authorized person in accordance with law. In fact, the forged entry is reflected only in the record maintained by the Patwari and not in the other record maintained by the other revenue officials. The findings returned by the trial Court to the said effect are produced as under: “Shri Bhim Ram, Patwari Halqua , Kotli (PW-6/R) simply brought the relevant record and stated that in jamabandi for the years 1979-80 (copy of which is Ex.PW-6/A) the 7 words “PARSA PUTRA’ by putting the mark of arrow and said change has been effected without any Fard Badar etc. “ It cannot be said that the said defendant was the owner in possession and had a valid right and title in law to transfer the land in favour of defendant No.1. Obviously, defendants were taking the advantage of the same name which the defendant No.2 was having with that of the plaintiff. Defendant No.2 had no right and title to transfer the land to any person. The courts below have correctly held that the transfer of the land inter se between the defendants was void and illegal. It cannot be said that defendant No.1 was a bonafide purchaser keeping in view the relation which he was having with defendant No.2 . . In this view of the matter, in my view, the courts below correctly arrived at a conclusion that the revenue entries indicating defendant No.2 to be the owner was only as an act of connivance and collusion of defendants with the revenue authorities. I see no error in the same. Paras Ram (PW-2) is the marginal witness to the gift deed (Ext.PW-1/A) which is a registered document and based on the same, the execution of the same was duly reflected in the revenue record. The defence of being a bonafide purchaser, in the facts and circumstances is obviously not available to the present appellant. He fully knew that the defendant No.2 had no land left in the village. He 8 was a close relative and knew the parties. The revenue officials were his relatives. There were revenue entries consistently showing the ownership of the plaintiff and his father. The same could not have been ignored. From the plaint, it is clear that the plaintiff had not sought for any relief for initiation of criminal prosecution against the defendants. The same, in any case was not an issue before the trial Court. Defendant No.2 died during the pendency of the suit and till the passing of the judgment by the trial Court, no steps were taken even by the plaintiff to initiate the machinery under the administration of the criminal justice system. However, while decreeing the suit, the trial court has in fact directed the Station House Officer, Arki to register a case against the defendants under Sections 420, 466,468, 471 read with Section 34 I.P.C. In my view, the direction given by the trial Court in para- 40 of its judgment directing the Deputy Collector, Solan to conduct an inquiry against the subordinates and also Station House Officer, Arki to register a case under Sections 420, 466, 468, 471 and read with Section 34 I.P.C. against the defendants and Patwari Halqua, Kotli needs to be reversed and set aside. The learned Judge was not adjudicating criminal intent of the defendants and was also not exercising the extra ordinary jurisdiction of the High Court under the Constitution. Ordered accordingly. Except for this part of the judgment all the other findings are upheld. The questions of law are answered accordingly. 9 For the aforesaid reasons, the appeal is partly allowed and disposed of in the aforesaid terms. (Sanjay Karol), Judge. March , 2008(R)