IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 67 of 2000. Date of decision: 24.12.2010. Gagan Singh & ors. ….. Appellants. Vs. Baldev Singh & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. Rajnish K. Lall, Advocate vice Mr. K.D.Sood, Advocate. For the Respondents : Mr. B.K.Malhotra, Advocate, for respondents No. 1 to 5, 8 to 10, 12 and 14 to 16. Ms. Ruma Kaushik, Addl. Advocate General with Mr. J.S.Rana, Asstt. Advocate General, for respondent No. 13. Kuldip Singh, Judge (Oral). This appeal is directed against judgement and decree dated 12.11.1999 in Civil Appeal No. 26/89 (86) passed by learned Additional District Judge (1), Kangra at Dharamshala, affirming judgement and decree dated 23.9.1986 passed by learned Sub Judge Ist Class, Dehra in Civil Suit No. 28/82, but also declaring that sale deed dated 27.12.1975 in respect of suit land is in contravention of government letter dated 27.8.1970 Ex. DW 2/A (sic Ex.PW 3/B) and is null and void and not binding upon the plaintiffs. The parties being in cultivating possession of the suit land as tenants have Whether the reporters of the local papers may be allowed to see the Judgment? …2… become owners by virtue of H.P. Tenancy and Land Reforms Act and Rules framed thereunder qua their shares in the suit land as recorded in the jamabandies for the year 1968-69 and 1973-74. Some of the parties have died during the pendency of litigation and their legal representatives have been brought on record, some names have been deleted, therefore, in order to avoid confusion, the parties in the judgement are referred as plaintiffs and defendants. 2. The facts of the case are that two plaintiffs, namely Suba Singh and Bhumi Singh had filed a suit for declaration that sale deed dated 27.12.1975 with respect to land more specifically described in the prayer of the plaint is null and void and in contravention of letter dated 27.8.1970 of Under Secretary (Revenue) to the government of Himachal Pradesh addressed to Commissioner (Revenue) HP and not binding on the plaintiffs and does not in any way affect their rights to continue in possession over the suit land according to their shares specified in jamabandi for the year 1968-69, as tenants. The entry in the column of ownership in respect of suit land is the result of fraudulent sale and is wrong, null and void and not binding on the plaintiffs. The relief of perpetual prohibitory injunction was also prayed against defendants No. 2 and 3. In alternative, it has also been prayed that in case the sale is not set-aside and is held to be valid then in that case decree for declaration with consequential relief may be passed in favour of the plaintiffs and defendants No. 2 to 4 that they being tenants at will have become absolute owners by virtue of H.P. Tenancy and Land Reforms Act on the land in accordance with their shares specified in the jamabandis for the years 1968-69 …3… and 1973-74 pertaining to the land owned by defendant No.1 and they have the right to get their shares separated by way of partition by meets and bonds. The entry of defendant No. 2 as exclusive owner over Khata No. 3 measuring 2-13-15 hectares and the entries pertaining to the shares in Kata No. 6 are wrong, null and void and not binding on the plaintiffs. The further prayer has been made that defendants No. 2, 3 may be restrained by way of perpetual injunction from interfering in possession of the plaintiffs. The plaintiffs have also prayed mandatory injunction but have not specified the nature of mandatory injunction either in the main relief or in the alternative relief. 3. The plaintiffs after giving the particulars of the suit land and who was in possession of which part of the suit property and in which capacity have pleaded that previously the suit land was owned by one Khemdi, he died issueless and without any heir to succeed him, his estate was escheated to the provincial government and thus defendant No. 1 representing provincial government became its owner and mortgagor. 4. The mortgaged land was redeemed by defendant No.1 in the year 1944. The plaintiffs have pleaded that plaintiffs and defendants No. 2 to 4 are continuing in possession on suit land as tenants according to their shares specified in jamabandies for the years 1959-60, 1963-64, 1968-69 and 1973-74. 5. It has been alleged that Bir Singh defendant applied on behalf of others to the Deputy Commissioner, Kangra for purchase of Nazul land. The defendant No. 1 ultimately agreed and conveyed its …4… sanction for the sale of land referred to above to the present occupants i.e. plaintiffs and defendants No. 2 to 4 on payment of market price plus 20% sur-charge, as is evident from copy of letter dated 27.8.1970 of Under Secretary (Revenue) to the Government of Himachal Pradesh addressed to Commissioner (Revenue) Himachal Pradesh. On receipt of sanction and taking undue advantage of old- age of plaintiff No. 1 and by misrepresenting him true facts, defendant No. 2 got a general power of attorney executed in his favour on 18.5.1971 for the purpose of getting a conveyance deed in favour of all occupants. On the pretext of execution of general power of attorney, it appears Bir Singh got some words written in his favour just to deprive the plaintiffs of the land without their knowledge. The plaintiff No. 1 never agreed that defendant No. 2 should get his share out of the land belonging to plaintiff No. 1. 6. The defendant No. 2 in connivance with document writer and in violation of letter dated 27.8.1970 got a sale deed drafted. The Deputy Commissioner in good faith and believing his subordinate staff put his signatures on the sale deed, which was registered on 25.2.1976. The sale deed is not in accordance with the shares specified in the jamabandies. The sale deed is the result of fraud and mis-representation and, therefore, the same is liable to be set-aside. 7. The mutation was attested on the basis of sale deed in absence of the plaintiffs, after sanction of mutation the defendant No. 2 started interfering in possession of the plaintiffs and also started proclaiming that he had purchased from the State the land in question as per sale deed registered on 27.12.1975. The plaintiffs started …5… probing into the matter and then found all deception, mis- representation and fraud on 19.10.1981 after obtaining an attested copy of sale deed from office of Sub-Registrar, Dehra. A notice under Section 80 CPC was served on defendant No. 1 and then the suit was filed. 8. The suit was contested by defendants No. 2 and 3 by filing joint written statement in which preliminary objections of maintainability, limitation, cause of action, jurisdiction, estoppel have been pleaded. The plaintiff No. 2 is not entitled to claim ownership rights. The plaintiff No. 1 has waived his right, if any, by execution of deeds dated 18.5.1971 and 27.12.1975. No proper notice was issued under Section 80 CPC. The alternative prayer made in the plaint has not been indicated in the notice under Section 80 CPC. On merits, it has been stated that suit land is owned and possessed by defendant No. 2 as per sale deed executed on 27.12.1975. He has developed the land by spending heavy amount. The defendants No. 2 and 3 were non occupancy tenants on khata No. 13 and co-sharers in khata No. 14 and non-occupancy tenants on government land. Suba Singh took government land on chakauta and defendant No. 2 had been paying chakauta on behalf of Suba Singh. The defendants No. 2 and 3 were also in joint possession of government land alongwith Suba Singh. The plaintiff No. 2, defendants No. 4 and 5 were not non occupancy tenants under provincial government nor of Suba Singh plaintiff No. 1. 9. Suba Singh had executed voluntarily general power of attorney on 18.5.1971 in favour of defendant No. 2 and has shown his …6… physical inability to prosecute the application for acquiring the land and had also shown his financial inability to pay the sale price, the arrears of chakauta and registration expenses. He gave his written consent to defendant No. 2 to purchase the land himself. Suba Singh was present at the time of execution of conveyance deed dated 27.12.1975 and had knowledge of its contents right from 27.12.1975. 10. The sale deed dated 27.12.1975 was read over and explained to Suba Singh. The defendant No. 2 had paid the entire sale price, sur-charge and value of government trees, registration charges, chakauta money for many years and bore all expenses for obtaining the land from the government and got it allotted in the names of defendants No. 2 , 3 and Suba Singh plaintiff No. 1. The plaintiffs have no right to challenge the sale deed. The alternative case of the plaintiffs is an afterthought and not tenable nor maintainable. The sale deed is in accordance with facts and law and cannot be challenged. The defendants No. 2, 3 have prayed for dismissal of the suit. 11. The plaintiffs filed replication to the written statement of defendants No. 2 and 3 and reiterated their stand taken in the plaint. The plaintiff No. 1 Suba Singh had died and his legal representatives were brought on record. On the pleadings of the parties, the following issues were framed:- 1. Whether the suit is not maintainable? OPD. 2. Whether the suit is within time? OPP. 3. Whether the plaintiff has cause of action? OPD 4. Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPP. …7… 5. Whether the plaintiffs are estopped by their act and conduct? OPD. 6. Whether a valid notice under Section 80 CPC has been served upon the defendants, as alleged? OPP. 7. Whether the suit is bad for mis-joinder of necessary parties? OPD. 8. Whether the plaintiffs and defendants 2 to 5 were tenants over the suit land, if so, whether they have become owners by Act No. 8 of 1974? OPP. 9. Whether the sale deed executed on 27.12.1975 is in violation of the instructions issued by the revenue department, through under Secretary, if so its effect? OPP. 10. Whether the sale deed dated 27.12.1975 was the result of fraud and undue influence? OPP. 11. Whether the power of attorney executed on 18.5.1971 was the result of fraud and undue influence? OPP. 12. Whether the defendant No. 2 has committed forgery of sale deed as alleged? OPP. 13. Whether the defendant No. 2 has made any improvement if so to what amount and to what extent? OPD-2. 14. Relief. The issues No. 1, 5, 7, 12, 13 were answered in negative, issues No. 2, 3, 4, 6, 8, 9, 10 and 11 were answered in affirmative and learned Sub Judge Ist Class, Dehra on 29.3.1986 decreed the suit qua relief-A. 12. The judgement, decree dated 29.3.1986 was assailed in Civil Appeal No. 109/86-26 of 1989 and on 1.4.1992 the learned Additional District Judge (1), Kangra accepted the appeal and set- …8… aside the judgement, decree dated 29.3.1986 and dismissed the suit. The judgement and decree dated 1.4.1992 were challenged in RSA No. 225/1992, which was allowed on 19.4.1999 by this court. The judgement and decree dated 1.4.1992 were set-aside and the case was remanded for fresh decision in accordance with law in the light of observations made in the judgement dated 19.4.1999. 13. The learned Additional District Judge after remand decided the appeal on 12.11.1999 and dismissed the same. It was held that plaintiffs’ suit for declaration that sale deed dated 27.12.1975 in respect of suit land is in contravention of government letter dated 27.8.1970 Ex. DW 2/A ( sic Ex. PW 3/B) and null and void, not binding on the plaintiffs. The parties being in cultivating possession of the suit land as tenants have become owners by virtue of H.P. Tenancy and Land Reforms Act as per their shares in the suit land as recorded in the jamabandies for the years 1968-69 and 1973-74. The appellants, who are the legal representatives of Bir Singh defendant No. 2 have assailed the judgement, decree dated 12.11.1999 in second appeal, which has been admitted on the following substantial questions of law:- 1. Whether the suit of the plaintiffs which was filed in the year 1982 was within limitation when it was established that the possession has been delivered to the defendant in the year 1975 and registration of the sale deed 27.12.75 amounted to a notice to the plaintiff? 2. Whether the finding that the sale deed dt. 27.12.75 was in contravention of the Govt. letter dt. 27.8.77 (sic 27.8.1970) is legally sustainable, particularly when it was established that from DW-1/A to DW- …9… 1/D that Bir Singh had been pursuing the matter for the purchase and that vide DW-1/G he had paid the price of the land and had been paying Chakauta throughout? 3. Whether Bir Singh was a bonafide purchaser for consideration and the provisions of the H.P. Tenancy and Land Reforms Act have been misread and misconstrued which has vitiated the findings? 14. I have head the learned counsel for the parties and have also gone through the record. The learned counsel for the appellants has submitted that the suit is not within limitation, the sale deed was executed on 27.12.1975 and was registered on 25.2.1976. The suit for declaration etc. was filed on 16.1.1982, hence the suit is time barred. The learned Addl. District Judge has erred in not dismissing the suit on the ground of limitation in view of material on record. It has been submitted that learned Addl. District Judge has erred in returning the findings that sale deed is in contravention of letter dated 27.8.1970 Ex. PW 3/B. Bir Singh had been pursuing the matter. He had paid the price of the land and he had also been paying Chakauta throughout. The learned counsel for the appellants has prayed for acceptance of appeal and dismissal of the suit. Mr. B.K. Malahotra, learned counsel for some of the respondents has supported the impugned judgement, decree. The learned Additional Advocate General has submitted that in view of amendment carried out in H.P. Tenancy and Land Reforms Act, 1972 (for short, the Act) in the year 1988 the learned Addl. District Judge has erred in declaring that tenants in cultivating possession of the suit land have become …10… owners under the Act as per their shares in the suit land recorded in the years 1968-69 and 1973-74 15. The substantial question of law No. 3 is taken first for determination. The learned counsel for the appellants at the time of hearing has fairly stated that in the written statement filed by defendants No. 2 and 3, there is no specific plea that Bir Singh defendant No. 2 was bonafide purchaser of the suit land for consideration. In view of fair stand taken by learned counsel for the appellants regarding bonafide purchase of suit land by Bir Singh the substantial question of law No. 3 requires no further scrutiny. The substantial question of law No. 3 is thus decided against the appellants. 16. The sale deed Ex. DW 1/E has been executed on 27.12.1975 and registered on 25.2.1976. DW 1 Bir Singh has stated that on the sale deed Ex. DW 1/E Suba Singh had put his signatures, but he has not stated that Suba Singh was aware of the contents of the sale deed or it was read over to him. In cross-examination, he has stated that Registrar had read over the sale deed but again he has not stated that Suba Singh was present when Sub-Registrar had read over the sale deed. PW 1 Suba Singh has stated that he has seen original sale deed and it does not bear his signatures. He was cross-examination, but no question was put to him in the cross- examination that sale deed Ex. DW 1/E was read over to him and he was aware of the contents of the sale deed. The statement of Suba Singh that sale deed Ex. DW 1/E does not bear his signatures was not challenged in the cross-examination. It means, the defendants …11… have accepted the case of the plaintiffs that sale deed Ex. DW 1/E does not bear the signatures of Suba Singh. 17. It has also been pleaded in para-9 of the plaint that after sanction of the mutation about 7-8 months back after harvesting of rabi 1981, the defendant No. 2 started interfering in possession of the plaintiffs and started proclaiming that he has purchased the suit land from the State. Upon this, plaintiffs started probing into the matter and then found deception and fraud played. The presence of Suba Singh is not recorded on the sale deed Ex. DW 1/E at the time of registration of sale deed on 25.2.1976. Bir Singh was present on behalf of the purchasers, therefore, the statement of Bir Singh that sale deed was read over by the Sub-Registrar is not in accordance with the endorsement of registration made by the Sub-Registrar where presence of Suba Singh has not been recorded. 18. The plaintiffs have projected the case that Bir Singh has fraudulently procured the sale deed Ex. DW 1/E. They were not aware of the fraud misrepresentation of Bir Singh. The statement of PW 1 Suba Singh was recorded on 10.12.1983 and on that date he had given his age as 92 years. The sale deed Ex. DW 1/E was executed on 27.12.1975 and therefore, on that date the age of Suba Singh was approximately 84 years. PW 1 has also stated that for the last about ten years he was not in a position to move about. In the plaint, the plaintiffs have taken the plea of fraud and misrepresentation. In the judgement of remand dated 19.4.1999 of this court in RSA No. 225/1992 this court has noticed the points formulated by learned Additional District Judge in the judgement …12… dated 1.4.1992 and observed that learned Addl. District Judge has not decided point No.2. This court in judgement dated 19.4.1999 has directed the learned Addl. District Judge to decide the appeal in the light of observation made in judgement dated 19.4.1999. In judgement dated 19.4.1999 on issue of limitation there was no direction. Thus issue of limitation had attained finality. In any case Section 17 of the Limitation Act provides starting of limitation in case of fraud or mistake. The limitation for the purpose of suit based upon fraud of the defendant shall not begin to run until the plaintiff has discovered the fraud or mistake or could with reasonable diligence have discovered it. As per plaintiffs they came to know fraud and deception when on 19.10.1981 they obtained copy of sale deed. The suit was filed on 16.1.1982 and is thus within limitation. The substantial question of law No. 1 is decided against the appellants. 19. The learned Addl. District Judge has held that sale deed dated 27.12.1975 Ex. DW 1/E is in contravention of government’s letter dated 27.8.1970 Ex. DW 2/A (sic Ex. PW 3/B). Ex. PW 3/B provides that government had sanctioned the sale by private treaty of land measuring 84 Kanals 2 marlas in Khata No. 13 and measuring 54 Kanals 2 marlas in Khata No. 12 situated in Tikka Nandlu, Mouza Tatahan Khurad, Tehsil Dehra to the present occupants on payment of market price plus 20% sur-charge as recommended by Deputy Commissioner, Kangra after completing all codal formalities. 20. The learned Sub Judge under issue No. 9 has recorded a finding that sale deed, which has been challenged shows that it is not in conformity with the sanction as the suit land was to be sold to …13… the parties as per their shares, who were in possession at the time of sale. The learned Sub Judge has held that the sale deed executed by the representatives of defendant No. 1 was without any authority from defendant No. 1 and has no binding effect. The learned Addl. District Judge has also recorded a finding that combined reading of letter Ex. PW 3/B and sale deed makes it clear that impugned sale is in contravention of sanction letter of the government. The defendant No. 2 has been made exclusive owner of the land on the basis of impugned sale deed to which he was not entitled. Bir Singh could not have been shown to be exclusive owner and vendee of new khata No. 3 and on ½ share in new Khata No. 6, the sale is in violation of sanction letter Ex. PW 3/B dated 27.8.1970. 21. On behalf of the appellants, it has been contended that Bir Singh had paid rent and price of Nazul land vide Ex. DW 1/A to Ex. DW 1/D and Ex. DW 1/G. The payment of rent or price of Nazul land by Bir Singh does not improve the case of Bir Singh when on facts it has already been held that sale deed Ex. DW 1/E dated 27.12.1975 registered on 25.2.1976 is not in conformity with government letter dated 27.8.1970 Ex. PW 3/B. The two courts below have recorded a finding that sale deed dated 27.12.1975/ 25.2.1976 is not in conformity with letter dated 27.8.1970, and therefore, is null and void. The view taken by the two courts below emerges from the evidence on record. It has not been shown from the material on record that this finding recorded by the two courts below is perverse or is based upon inadmissible evidence or material evidence has …14… been ignored. The substantial question of law No. 2 is thus liable to be decided against the appellants and is accordingly decided. 22. The learned Addl. District Judge in the impugned judgement, decree while affirming the judgement, decree dated 29.3.1986 has further given declaration that parties being in cultivating possession of the suit land as tenants have become owners by virtue of Act qua their shares in the suit land as recorded in the jamabandies for the years 1968-69 and 1973-74. The learned Addl. Advocate General has submitted that this part of impugned judgement and decree is not sustainable in view of amendment carried out in the year 1988 in the Act by virtue of which the tenant is not entitled to conferment of proprietary rights of government land under the Act. It has been submitted that the amendment carried out in the year 1988 is retrospective, and, therefore, even if private parties in the present litigation are found to be tenants on the government land, still they are not entitled to proprietary rights of the government land in view of amendment carried out in the year 1988. Mr. B.K. Malhotra, Advocate has submitted that this plea is not available to the State, who has not challenged the decree of the trial court or of the learned lower appellate court. The contention raised by the learned Additional Advocate General is purely legal and it emerges from the amendment carried out in the Act. The sub- section (3) of Section 104 of the Act is as follows:- “(3) All rights, title and interest (including a contingent interest, if any) of a landowner other than a landowner entitled to resume land under sub-section (1), shall be extinguished and all such rights, title and interest …15… shall with effect from the date to be notified by the State Government in the Official Gazette vest in the tenant free from all encumbrances: Provided that if a tenancy is created after the commencement of this Act, the provision of this sub-section shall apply immediately after the creation of such tenancy.” The Act was amended by Amendment Act No. 6 of 1988 and following proviso was added after sub-section (9) of Section 104 of the Act:- “Provided that nothing contained in this section shall apply to such