CIVIL APPEAL 351 of 1999 on 13 October 1976

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

RSA No. 351 and 352 of 1999 Date of Decision: 15[th] November, 2010__________________________________________________________ RSA No. 351 of 1999Barkha Devi ….Appellant. Versus Kuldep Singh & others ….Respondents. RSA No. 352 of 1999Bidhi Chand & another …..Appellant Versus Kuldip Singh and others …..Respondents ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?[1] No ___________________________________________________________ For the Appellants: Mr. K.D. Sood, Advocate For Respondents: Mr. Ajay Sharma, Advocate __________________________________________________________________

Dev Darshan Sud, J (oral).

Both these appeal are being disposed of by this judgment as they arise out of the same facts. Suit for possession of land comrpised in Khata Khatauni No. 35, 129, Khasra Nos. 558 and 559 measuring 0-04-35 Hects situated in Mohal Jakhuni, 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes mauja Dehra was instituted by S/Shri Kuldip Singh and Kuljit Singh.

2. On the pleadings of parties, the learned trial Court settled six issues with two additional issues claimed by the defendants. The crucial issue was whether the plaintiff was entitled to the possession of suit land and inter-linked with this was another issue whether Premu and thereafter his successors-in-interest had become owners of the suit land by way of adverse possession. In the additional issues claimed, the jurisdiction of the Civil Court to try the suit was also pleaded and defendant Nos. 3 and 4 set up the defence of bonafide purchaser for valuable consideration. These issues were taken up together for determination by the learned trial Court.

3 On the issue of adverse possession, there was no difficulty in deciding as the learned Courts below have not found any pleading or evidence on record to establish this plea. On the question of ownership, the learned trial Court considered the evidence of parties in detail and held that it was undisputed that Shri Jai Singh predecessor in interest of the plaintiffs was the owner in possession of the suit land. The defence set up by Premu (defendant since deceased) that he was tenant on the suit land and thereafter acquired properitory rights under the Himachal Pradesh Tenancy and Land Reforms Act was rejected on the ground that there was no proof of tenancy or agreement by Jai Singh with Premu and that the mutation conferring title under the Act was not sufficient to establish ownership as it was attested by the Assistant Collector IInd Grade who was not competent to do so in law. The Court held that an inquiry has to be made by the revenue officer, who is of the rank of Tehsildar and only he is competent to pass orders granting proprietory rights. Moreover, no inquiry etc. as required was proved/established on record. The suit was accordingly decreed. On the question of bonafide purchase, the Court again held that Premu having no title could not sell the land to Bahadur Singh and thereafter to Bidhi Chand and Kuldeep.

3. Two appeals were preferred from this judgment and decree. One by the successors-in-interest of Premu and second by defendants No. 3 and 4 challenging the judgment on various grounds.

4. The learned District Judge, tried the appeals together, dismissed both the appeals and re-affirmed the findings of the learned trial Court by reappreciating the entire evidence. The learned Court did not find any substance in the plea set up by the defendants with respect to adverse possession as also creation of tenancy in favour of Premu. The Court held that the so called tenancy came to be recorded for the first time when Ext.P2, which is a Rapat Roznamcha Vakyati, was recorded on 26.3 .1987 as signed by the Patwari of Circle Dehra. The document recites that a report was made by Premu son of Sidhu Ram to the Patwari that he is the tenant on the suit land since Kharif 1974. There is an entry in red ink on the side noting entry No. 193 dated 13.10.1976 but this does not explain how it was noticed by the Patwari in 1987. With respect to the mutation, conferring title, the Court again affirmed the findings of the learned trial Court by holding that there was no regular inquiry made by the revenue authorities, there was no material to show the basis on which this mutaiton was attested. In the totality of the circumstances, the Court holds that Ext.P2 had no foundation or basis was unilateral in nature and Ext.D1 was itself illegal being without any foundation in law as it was attested by an Officer who is not competent in law to do so.

5. Another aspect urged in support of the creation of tenancy was that late Shri Jai Singh had entered into some kind of compromise with Premu and at that time it was found that he was tenant of the entire suit land. This plea was held by the Court to be without any foundation. No compromise was proved on record. The plea of the other defendants on the ground of bonafide purchasers was also negative after detailed consideration of the evidence on record. The Court holds that on the statement of DW1 Barkha the only conclusion was that defendant Nos. 3 and 4 Bidhi Chand and Kuldip had purchased the suit land on 21.3.1990 when there was no house in existence and it was purchased during the pendency of the suit. In these circumstances, they were not entitled for the benefit of bonafide purchasers as they were aware that the suit was in fact pending with respect to this property. The sale made to Bahadur Singh had not been proved on record of the case.

6. Both these appeals were admitted on two substantial questions of law: