HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No.: 22 of 2007 Reserved on: 28.12.2007 Decided on: 4.1.2008 Hirkali ………Appellant. Versus State of H.P. and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.Romesh Verma, Advocate. For respondent No.1: Mr.Ashutosh Burathoki, Additional Advocate General. For respondents No.2 and 3: Mr.Ajay Kumar, Advocate. V.K. Ahuja, J: This is an appeal filed by the appellant against the judgment and decree of the court of learned District Judge, Kinnaur, dated 29.9.2006, vide which the appeal filed by the appellant against the judgment and decree of the court of Civil Judge (Senior Division), Kinnaur, dated 30.9.2005, dismissing the suit of the appellant for declaration, was dismissed. Briefly stated the facts of the case are that the appellant (hereinafter also referred to as plaintiff) filed a suit for declaration as against the respondents ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - alleging that she was owner in possession of the land comprised in Khasra No.965, measuring 0-21-51 hectares, situated in Up Mohal Giabong Khas, Tehsil Pooh, District Kinnaur, H.P. She sold the land to respondent/defendant No.2, vide sale deed, dated 3.11.1986, for a consideration of Rs.14,000/- and possession was also delivered by her to defendant No.2. The mutation was entered by the Patwari, but it was rejected by Assistant Collector IInd Grade, Pooh on the ground that defendant No.2 had married a non-tribal and as such she was debarred from holding the land. On an application of defendant No.2, Sub Divisional Collector, Pooh, vide his order, dated 30.5.1996, reviewed the order of rejection of mutation passed by the Assistant Collector, IInd Grade, Pooh and ordered the attestation of mutation of sale in favour of defendant No.2. Plaintiff by this suit challenged the order of review passed by the Sub Divisional Collector, Pooh holding that no reasons were assigned for review and no review was contemplated by the Act and as such the said order is liable to be set aside. The plaintiff also prayed that after cancellation of the mutation, she is entitled to recover the possession of the suit land from defendant No.2. The plaintiff filed the suit after serving a notice under Section 80 CPC on Sub Divisional Collector, Pooh and claimed that the mutation is liable to be set aside and the plaintiff is entitled to the possession of the suit land. Defendant No.1/State of H.P. pleaded that defendant No.2 was admittedly a tribal and she cannot be said to a be non-tribal on the ground that she had married a non-tribal. Therefore, the rejection of mutation by the - 3 - Assistant Collector IInd Grade, Pooh earlier was held to be illegal and the State had supported the order passed on review by the Sub Divisional Collector. Defendant No.2 pleaded that she was unmarried at the time of sale and she did not cease to be a tribal on her marriage and since on the date of the sale she was unmarried and was a tribal girl, the sale was valid and accordingly she supported the order passed by the Sub Divisional Collector. The plea of limitation was also taken that the order was being challenged after five years of passing of the same by the Sub Divisional Collector. The suit was tried by the learned Trial Court, which gave its findings holding that defendant No.2 had not lost her status after her marriage with a non-tribal and it was held that the review order passed by the Sub Divisional Collector, Pooh was legal and the suit was barred by time. The learned First Appellate Court had discussed the evidence in detail and had affirmed the findings of the learned Trial Court on all the issues. I have heard the learned counsel for the parties and have gone through the record of the case. There is no dispute in regard to the fact that an appeal before this Court can only be admitted if there is a substantial question of law which needs to be determined and decided by this Court. During the course of arguments, the learned counsel for the appellant had mainly raised the question that defendant No.2 had married a non-tribal and, therefore, the mutation has wrongly been attested by way of review in favour of defendant No.2, which findings are liable to be set aside. There is observation of the learned First Appellate Court that on the date the sale was effected, defendant No.2 was unmarried and, therefore, - 4 - there is no question of considering the plea that she had lost her status as a tribal woman. Her marriage had taken place subsequently and prior sale effected in her favour cannot be said to be wrong or illegal simply because she married lateron. Moreover, both the courts below have considered oral as well as documentary evidence and the provisions of the Act and have given a definite finding that defendant No.2 had not lost her status on marriage. There are findings of both the courts below that the plaintiff had not challenged the sale which should have been challenged and only then order on Review could have been declared to be illegal. There are also findings based upon the evidence that the suit was barred by time. All these questions have been duly considered by both the courts below and there are findings of fact on all the material issues involved in the case. The substantial question of law framed in this regard by the appellant at the time of filing of the appeal was mainly to this effect that defendant No.2 had ceased to have any interest over the suit land on account of her marriage with a non-tribal person and there were no reasons of passing of such orders on Review by the Sub Divisional Collector. These findings on these points and other points have been given by both the courts below after considering the evidence. During the course of arguments, no such evidence oral or documentary was pointed out which was not considered by the learned Trial Court or the First Appellate Court in coming to a conclusion which calls for reappraisal of evidence by this Court. In case the courts had misconstrued some evidence or misread some evidence or some material evidence oral or documentary had been ignored by the courts below, then there could have been a reappraisal of the evidence by - 5 - this Court which question does not arise in the present case. The findings are based upon the facts of the case and no case is made out for reappraisal of the evidence by this Court and as such the findings recorded by the learned First Appellate Court dismissing the appeal do not call for an interference by this Court and as such are liable to be affirmed. There is no merit in the appeal filed by the appellant, which is dismissed accordingly. The parties are left to bear their own cost. January 4, 2008. (V.K. Ahuja), (TILAK) Judge.