IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No.571 of 2000. Judgment reserved on: 19.5.2011 Date of Decision: 25.5.2011 Sushil Kumar and another ..Appellants Versus Smt.Raj Dulari and others ..Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No For the Appellant(s): Mr.Bhupender Gupta, Sr.Advocate with Mr.Ajit Jaswal, Advocate. For the Respondent(s): Mr.G.D. Verma, Sr.Advocate with Mr.B.C. Verma, counsel for Respondents No.1 to 3, 6,8, 10 to 15. Deepak Gupta, J. 1. The respondents and/or their predecessors-in- interest (hereinafter referred to as the plaintiffs) filed a suit against the present appellants and Ram Dass, predecessor-in-interest of proforma respondent (hereinafter referred to as the defendants) claiming possession of the suit land. 2. According to the plaintiffs, the suit land was jointly owned by a very large number of co-sharers and was in the possession and cultivation of the co- sharers. It was alleged that the suit had been filed - 2 - by the plaintiffs for the benefit of the entire body of co-sharers. According to the plaintiffs, Ram Dass, father of the defendants, in connivance with the settlement authorities, without notice to the co- sharers got an entry made showing him to be in possession of the suit land and accordingly it was prayed that the defendants be directed to handover the possession of the suit land to the plaintiffs. 3. The defendants contested the suit and it was pleaded that one Kashmir Singh who was also co- sharer in the khata had sold the suit land vide a registered sale deed to the contesting defendants (appellants herein) for a consideration of Rs.15,000/-. 4. The learned trial Court dismissed the suit. Thereafter, the plaintiffs filed an appeal and the learned lower Appellate Court allowed the appeal. The grounds which weighed with the learned lower Appellate Court were that the sale deed had not been proved on record and that in the plaint it was stated that the sale deed is dated 4.7.1989 and the date of mutation is 31.7.1994 but when DW-1 Sushil Kumar appeared in the witness box, he stated that - 3 - the land was purchased on 4.7.1994. Therefore, according to the learned lower Appellate Court the sale had taken place after the institution of the suit and the learned trial Court should have considered how defendants 1 to 3 have came into possession of the suit land even prior to the institution of the suit. The learned lower Appellate Court also appears to have been influenced by the fact that a co-owner who is not in actual physical exclusive possession of joint land or any specific portion thereof cannot transfer a specific portion by way of a sale deed. 5. This appeal was admitted on the following substantial questions of law: “1.Whether in a suit which was on behalf and for the benefit of all the co-sharers, a decree for possession could be passed against the successor in interest of the persons which were in possession of the suit property, when successors had acquired the status of a co-owners on account of the purchase of the share of admitted co-owner of the suit property to the extent of his share? 2)Whether the Lower Appellate Court has wrongly passed a decree for recovery of possession, when the title of the parties was not in dispute? In the absence of assailing the validity of the sale made by one of the co-owner, in favour of the Defendant- Appellants, could the suit for recovery of possession be maintained by other co-owners who never - 4 - claimed to be in exclusive possession prior to the sale deed? 3)Whether the Lower Appellate Court has wrongly drawn adverse inference against the appellants for not producing their sale deed when the factum of sale deed was never disputed in the pleadings nor was assailed during the course of the evidence and particularly when the revenue record depicts the entries incorporated on account of Exhibit D-2, mutation of sale?” 6. From a perusal of the record it is apparent that the plaint had been filed purportedly for the benefit of the entire body of co-sharers. The joint land is a very vast holding but the suit was filed only in respect of five khasra numbers i.e. Kh.Nos.157, 183, 1805, 1825 and 1829 measuring 1-62-66 hectares. At the outset, it may be mentioned that in the plaint itself it was admitted that the defendants were in possession of the suit land though according to the plaintiffs Ram Dass had illegally taken possession of the land in the year 1987. The suit was filed on 15.6.1994. Written statement was filed on 30.10.1994 and in this written statement it was stated that the defendants 1 to 3 were in possession of the land being co-sharers and that they had purchased the aforesaid five khasra numbers measuring 1-62-66 hectares out of the total joint land measuring 41-64- - 5 - 89 hectares by purchasing the share of Kashmir Singh son of Churu in the said land. According to the defendants, Kashmir Singh vide registered sale deed had sold the said land and handed over the possession of the same to defendants 1 to 3. In reply to para 1 of the plaint, it was stated that the sale deed No.269 was dated 4.7.1989. However, in reply to para No.3 the date of the sale deed is mentioned as 4.7.1994. It was obvious that the date 4.7.1989 is a typographical error. 7. In the replication filed, the execution of the sale deed was not denied in clear-cut terms. However, it was stated that Kashmir Singh had nothing to do with the land and therefore any sale executed by him would have no effect upon the rights of the plaintiffs. 8. The plaintiffs examined only one witness who is the general attorney of one of the plaintiffs. He could not even name the co-sharers for whose benefits the suit was allegedly filed. Though in the plaint it was mentioned that Ram Dass had taken illegal possession of the land, according to this witness the plaintiffs were still in possession of the - 6 - same. He also admitted that no efforts had been made by the plaintiffs to get the record, in which the defendants had been shown as co-sharers, corrected from the revenue authorities. 9. The plaintiffs produced two jamabandies, one for the year 1989-90 (Ext.P-2) and one for the year 1983-84 (Ext.P-3). A perusal of the revenue record shows that the entire land which is jointly held has 288650880 shares and out of this Kashmir Singh had 15785595 share which is roughly equivalent to the land sold by him. There is also a note in Ext.D-1 that vide mutation entered consequent to a sale deed the aforesaid share had been entered in the names of the present appellants. The mutation was attested on 31.7.1994 and the same has been Exhibited as Ext.D-2. 10. Alongwith this appeal, the appellants have also filed an application under Order 41 Rule 27 CPC praying that they may be permitted to produce and prove the sale deed dated 4.7.1994 whereby Kashmir Singh has sold the land in their favour. This application has been contested by the learned counsel for the respondents. In my view, there is - 7 - already sufficient material on record to show that Kashmir Singh had transferred his share in the land to the appellants. Not only has this been stated by the defendants while appearing in the witness box but the defendants were not really cross examined on this aspect of the statement. Even the attorney of one of the plaintiffs has given an evasive reply and stated that he does not know whether Kashmir Singh had transferred his share in the land to the appellants. The revenue record also clearly shows that Kashmir Singh had transferred his land to the defendants. Therefore, in my view, it is not necessary to allow the application and it is apparent that the findings of the learned lower Appellate Court that the defendants had failed to place on record and prove the sale deed are totally incorrect. 11. In view of the above discussion, the appeal is allowed and the questions are answered in favour of the appellants-defendants. Resultantly, the judgment and decree of the learned lower Appellate Court is set-aside and that of the learned trial Court is affirmed. Since the land is joint the - 8 - parties can proceed with the partition proceedings if they so desire. May 25, 2011. ( Deepak Gupta ), J. PV