IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 593 of 2000. Decided on : 31.5.2010. Kamaljit …Appellant. Versus Nathu Ram and others …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the appellant : Mr. Bhuvnesh Sharma, Advocate. For the respondents : Mr. Inderjeet Narwal, Advocate, for respondents No.1 & 2. Kuldip Singh , Judge (Oral) The plaintiff after having lost in both the Courts has come in second appeal against judgment, decree dated 29.8.2000 passed by the learned District Judge, Hamirpur in Civil Appeal No. 99 of 1993 affirming judgment, decree dated 7.6.1993 passed by the learned Senior Sub Judge, Hamirpur in Civil Suit No. 27-1 of 1990. 2. The facts, in brief, are that the appellant had filed a suit for declaration that sale dated 17.10.1989 made by respondent No.3 in favour of respondents No.1 & 2 regarding land comprised in khasra Nos. 217, 226 Kitas 2 total measuring 2 Kanals 19 Marlas vide jamabandi 1983-84 Tika Banal, Mauza Bhaleth is illegal, null and void under the agriculture custom of the parties as the land is ancestral qua the appellant and respondent No.3. The appellant had also prayed consequential relief of permanent prohibitory injunction restraining the 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 respondents No.1 and 2 from changing the nature of the suit land or raising any construction on it. 3. The further case of the appellant is that he is the son of respondent No.3 and was minor at the time of the filing of the suit. The respondent No.3 had inherited the suit land from his grand father as such suit land is ancestral qua appellant and respondent No.3 who are agriculturists by custom. According to custom, the male proprietor cannot make any alienation of the ancestral property without the consent of other coparceners without adequate consideration and legal necessity. The suit land was very valuable and it was allegedly sold for meager amount of Rs. 2500/-. The respondent No.3 is addicted to excessive drinking and he sold the suit land without legal necessity, the alienation of the suit land made by respondent No.3 to respondents No.1 and 2 is wrong and illegal. 4. The suit was contested by the respondents No.1 and 2 on the grounds of maintainability, collusiveness and estoppel. The ancestral nature of the suit land was denied. It has been alleged that the suit land was purchased for a consideration of Rs. 8500/- though in the sale deed lesser amount was mentioned. The respondent No.3 had settled far away from the suit land, he sold suit land for legal necessity and it was an act of good management as he earlier also sold property in the same village. In fact he has sold the entire land in the village with an idea of settling in some other village. It has been alleged that the respondents No.1 and 2 have raised residential houses on the suit land after spending huge amount. The purchase made by respondents No.1 and 2 was not void. The valuation of the suit land for purpose of court fee and jurisdiction was also contested. The replication was filed in which 3 stand taken by the respondent was reiterated and the defence put up by the respondents No.1 and 2 was denied. 5. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff and defendant No.3 are governed by custom in matters of alienation as alleged, of so, what that custom is? OPP 2. Whether the suit land is ancestral qua the plaintiff and defendant No.3? OPP 3. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction and in the alternative for possession as alleged? OPP 4. Whether the sale by defendant No.3 in favour of defendants No.1 and 2 is for legal necessity as alleged ?OPD 5. Whether the suit is collusive as alleged ? OPD 6. Whether the plaintiff is estopped to file the present suit by his act and conduct as alleged? OPD 7. Whether the suit is not maintainable as alleged? OPD 8. Whether the suit is not properly valued for the purposes of court fee and jurisdiction as alleged? OPD 9. Relief. The issues No.1 and 4 were answered in affirmative, issues No. 2,3 5 to 8 in negative and the suit was dismissed on 7.6.1993. The appeal filed by the appellant in the learned lower appellate court was dismissed by the learned District Judge on 29.8.2000, hence second appeal which has been admitted on the following substantial questions of law”- Whether the Courts below have misread and misappreciated the oral and documentary evidence on record to hold that the suit property is not an ancestral and also that it was sold for legal necessity by respondent No.3 Daroga alias Prem Chand ? 4 6. I have heard Mr. Bhuvnesh Sharma, Advocate, learned counsel for the appellant and Mr. Inderjeet Narwal, Advocate, learned counsel for respondents No.1 and 2 have also gone through the record. On behalf of the appellant, it has been submitted that the two courts below have misread and mis-appreciated the oral and documentary evidence on record in returning the finding that the suit property is not ancestral and also that it was sold for legal necessity. He has submitted that the ancestral nature of the suit property has been proved by Ex.P-2 read with Ex.P-8 as well as statement of DW-1 Nathu Ram vendee and statement of PW-1 Tilak Raj. He has submitted that the two courts below have erred in returning the finding that the suit land was sold for legal necessity. The learned counsel for respondents No.1 and 2 has submitted that the two courts below have recorded a finding of fact regarding non-ancestral nature of the suit property and that the suit land was sold for legal necessity. He has submitted that no fault can be found with the impugned judgment, decree. 7. The aforesaid substantial questions of law is in two parts (i) ancestral nature of the suit land (ii) legal necessity for selling the suit property. Ex.D-8 is the copy of jamabandi for the year 1981-82 wherein Daroga S/o Tek Singh has been recorded as owner in possession of Khasra Nos. 217 and 226 etc. The old khasra Nos. of 217 and 226 which are 632 and 668 have also been mentioned in Ex.D-8. It is thus clear that respondent No.3 was owner in possession of khasra Nos. 632 and 668 vide Ex.D-8. In Ex.P-2 several jamabandis have been clubbed together including jamabandi for the year 1965-66. In the column of possession in jamabandi for the year 1970-71 Mohan, Daroga etc. are recorded owners in possession of land comprised in khasra Nos. 632 and 5 668. In remarks column of the copy of jamabandi for the year 1970-71 it has been stated that vide mutation No.167, the share of Tek Singh has been mutated in favour of Mohan, Daroga, Dhian Chand, Puran Chand, Kishan Chand, Purshotam and Rattan Chand all sons of Tek Singh. Thus, it is clear that land comprised in khasra Nos. 632 and 668 has come to respondent No.3 Daroga from his father Tek Singh. PW-1 Tilak Raj has stated that land in dispute is ancestral. On the ancestral nature of land in dispute he has not been cross-examined. PW-2 Jeet has also stated that the land in dispute is ancestral. In view of the statements of PW-1, PW-2 , Ex.P-2 and Ex.P-8 it has been established that the land in dispute is ancestral. The connected question is whether the land has been sold by respondent No.3 for legal necessity. 8. It has come on record that respondent No.3 had some land including the suit land in village Banal. The respondent No.3 resides at Village Paneh. He has his residential house also in that village. Respondent No.3 had sold his entire land in village Banal including the suit land. In sale deed Ex.DW-3/A dated 17.10.1989 it has been stated that he is not in a position to manage the suit land as it is far away from his house, therefore, he has sold the suit land. DW-1 Tilak Raj in his statement has stated that respondent No. 3 had earlier sold the land to several persons. The respondent No.3 has got the land in Tika Banal from his father in law where he is residing for the last 26-27 years . The distance between Paneh and Banal is 6 K.M. . The respondent No.3 has left no land at village Banal. It was not possible for him to reside at Banal and cultivate the land. The respondent No.3 after selling the said land has constructed a house and verandah. It is the defence of respondents No.1 and 2 that they are bonafide purchasers of the suit land from 6 respondent No.3. The legal necessity is to be seen at the time of sale. It is not possible for the transferee to monitor where the sale consideration amount is actually spent. In the sale deed Ex.DW-3/A it has been stated that since the land in question is away from the residence of the vendor and he is not in a position to manage the land and in these circumstances, the land was sold. 9. In Bara Singh Vs. Kashmira Singh and others (1990) 4 SCC 711, it has been held that where the relations of the proprietor with his brothers were strained he sold the land to purchase some land in other village the alienation was held to be in an act of good management. In other words, if the land is sold for good management, it comes within the purview of legal necessity. In the present case also, it has been proved on record that the land in question sold by respondent No.3 to respondents No.1 and 2 vide sale deed Ex.DW-3/A for good management, therefore, it can be safely held that such sale was for legal necessity. Thus, the aforesaid substantial question of law is partly decided in favour of the appellant to the extent that the land in question was ancestral but remaining substantial question of law is decided against appellant by holding that land in question was sold by respondent No.3 to respondents No.1, 2 for legal necessity . The aforesaid substantial question of law is decided accordingly. 10. No other point was urged. 11. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ) Judge. May 31, 2010. (GR)