Himachal Pradesh High Court
Tara Devi & Ors vs Kaushalya Devi & Ors on 2 March, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No. 249 of 2003.
Reserved on: 1.3.2016.
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Decided on: 2.3.2016.
Tara Devi & ors. ......Appellants.
Versus
Kaushalya Devi & ors. .......Respondents.
Coram
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The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? Yes.
For the appellant(s): Mr. Ajay Sharma, Advocate.
For the respondents: rt Mr.N.K.Thakur, Sr. Advocate with Mr. Rahul Verma, Advocate,
for respondent No. 1.
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Justice Rajiv Sharma, J.
This regular second appeal is directed against the judgment and decree of the learned Addl. District Judge, Una, H.P. dated 25.3.2003, passed in Civil Appeal (RBT) No. 186/01/94.
2. Key facts, necessary for the adjudication of this regular second appeal are that Kaushalya Devi, respondent-plaintiff (hereinafter referred to as the plaintiff) has filed a suit for possession of land measuring 90 kanals 9 marlas comprised in Kh. Nos. 47, 134, 147, 280, 308, 349, 445, 447, 449, 482, 549, 569, 598 and 600 situated in village Nohan Tehsil Amb, Distt. Una, H.P. The predecessor-in-interest of respondents No. 2 to 4, namely Sh.
Jagrup Singh and Santokh Singh alongwith one Smt. Naresh Devi were owners of the land alongwith share in Shamlat i.e. suit land as co-sharers.
They sold their land along with share in Shamlat to the plaintiff and one Loharu son of Tani Ram through registered sale deed dated 27.12.1966 for ::: Downloaded on - 15/04/2017 19:51:38 :::HCHP 2 consideration of Rs. 2,000/-. The plaintiff was put in possession of the entire land including the suit land. She was coming in possession of the suit land .
since then. Loharu died and he was succeeded by the plaintiff. Thereafter, plaintiff is coming in possession as co-sharer in the suit land. However, due to mistake of the patwari, mutation in respect of the Shamlat land was not sanctioned in favour of the plaintiff and name of the earlier owners continued. The appellants-defendants (hereinafter referred to as the of defendants) and few others purchased the share of Naresh Devi since the name of Naresh Devi was coming in the revenue record. The plaintiff filed rt civil suit against the appellants and others qua the share of Naresh Devi. The suit was decreed by the then Sub Judge, Amb on 24.5.1985. The appellants were proclaiming that they have purchased the share of Sh. Jagrup Singh and Santokh Singh in the suit land. The plaintiff did not admit the factum of sale but even if there was any sale, it was illegal.
3. The suit was contested by defendants. According to them, plaintiff had no right, title and interest in the suit land nor she was put in possession of the same. According to them, the owners were in possession of the suit land and they have sold the same to the defendants for sale consideration through registered sale deed. They were bonafide purchasers without notice. The entries were rightly alleged to be appearing in the name of erstwhile owners and plaintiff never raised any objection before the consolidation authorities. Sh. Jagrup and Santokh Singh also filed the written statement. According to them, they have never executed any sale in favour of plaintiff or Loharu and if plaintiff succeeds in proving the sale deed, ::: Downloaded on - 15/04/2017 19:51:38 :::HCHP 3 the same was void and ineffective as the plaintiff never entered into the possession of the suit land and secondly they being in possession have .
become its owners by way of adverse possession.
4. The learned Sub Judge (II), Amb, H.P., framed the issues and suit was dismissed on 29.4.1994. The plaintiff, preferred an appeal before the learned Addl. District Judge, Una. The learned Addl. District Judge, Una, allowed the same on 25.3.2003. Hence, this regular second appeal.
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5. This Regular Second Appeal was admitted on the following substantial questions of law on 30.3.2005:
rt "1. Whether share in Shamlat (which is admittedly in the ownership of the State) can be transferred by way of sale, if not, the impugned judgment and decree as passed contrary to the above said settled position stand vitiated and liable to be quashed and set aside?
2. Whether the suit as filed is hit by provisions of Article 100 of the Limitation Act, having been filed beyond the period of limitation and this aspect having not been looked into by the courts below, impugned judgment and decrees as passed stand vitiated and liable to be quashed and set aside?
3. Whether the impugned judgment and decree stand vitiated having been passed without looking into the factum of misjoinder and non-joinder of necessary parties?"
6. Mr. Ajay Sharma, Advocate, for the appellant, on the basis of substantial questions of law, has vehemently argued that the share in Shamlat land could not be transferred by way of sale. He then contended that the suit was barred by limitation. He lastly contended that there was ::: Downloaded on - 15/04/2017 19:51:38 :::HCHP 4 non-joinder of necessary parties. On the other hand, Mr. Naresh Thakur, Sr. Advocate, has supported the judgment and decree dated 25.3.2003.
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7. I have heard the learned Advocates for the parties and gone through the judgments and records of the case carefully.
8 The plaintiff Kaushalya Devi has appeared as PW-1. She testified that the suit land was purchased by her and Laharu from Santokh Singh and Jagrup about 17-18 years back. When the suit land was purchased, khata of of the suit land was joint. She had filed suit against Naresh Devi which was decreed in her favour.
rt Laharu died and she has succeeded him. The defendants were claiming ownership of the suit land by way of sale deed which was not correct. She placed on record Ext P-1 to P-6. Ext. P-1 is the copy of jamabandi for the year 1980-81 pertaining to the suit land which shows defendants and others in possession of the suit land as owners. Ext.
P-2 and P-3 are the copies of judgment and decree dated 1.4.1989 of the appeal preferred by Tara Devi against the judgment and decree passed by the Sub Judge, Amb dated 24.5.1985. Ext. P-4 and P-5 are the copies of jamabandi for the year 1965-66 and 1975-76 pertaining to the suit land.
9. The defendants have placed on record Ext. D-1 and D-2, copies of judgment and decree sheet dated 30.6.1992 rendered by the then Sub Judge, Amb in case titled as Tani Ram Vs. Kaushalya Devi. Ext. DA to DD are the copies of missal hakiat Ishtemal and missal hakiat Bandobast for the year 1980-81 to 1986-87.
10. One of the defendants Tara Devi appeared as a witness.
According to her, the plaintiff had also filed a suit against her. However, the ::: Downloaded on - 15/04/2017 19:51:38 :::HCHP 5 plaintiff did not include the suit land in that suit. She purchased the suit land from Jagrup and Santokh as they were in possession in the year 1983.
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She has also proved copies of sale deed Ext. DW-1/A to DW-1/D.
11. DW-2 Ram Prashad is the stamp vendor.
12. DW-3 Santokh Singh deposed that the suit land is 60-65 kanals.
He has neither sold the land to Loharu nor Kaushalya Devi. The possession was not handed over to them.
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13. The sale deed was not proved before the trial Court. The plaintiff filed an application under Order 41 Rule 27 CPC.
rt The application was allowed and the plaintiff has proved sale deed Ext. A-1. The original sale deed was lying in the decided case. It was brought by record keeper AW-1 Sarwan Dass. Sh. M.G.Sharda Advocate has testified that Jagrup Singh, Santokh Singh and Naresh Devi had executed the sale deed in favour of Kaushalya Devi and Loharu vide Ext. A-1. They had also agreed to part with their rights in the Shamlat land. The sale consideration was Rs. 2000/-. The validity of the sale deed was also gone into in earlier litigation. The suit was decreed by the learned Sub Judge, Amb vide judgment dated 24.5.1985 vide Ext. P-6. The defendants preferred an appeal against the same. The learned District Judge vide judgment and decree dated 1.4.1988 Ext. P-2 & P-3 dismissed the same. In the earlier suit, only share of Naresh Devi which was sold was under challenge whereas rest of the share has been assailed in the present suit.
14. It would be pertinent to state here for the completion of facts that as per the copy of jamabandi for the year 1965-66 Ext. P-5, the entire land ::: Downloaded on - 15/04/2017 19:51:38 :::HCHP 6 was shown in the ownership and possession of the Gram Panchayat.
According to Ext. P-3, it is stated that earlier, a suit was filed by the .
proprietory body of the village against the Gram Sabha whereby the vestment of the suit land in the Gram Panchayat was challenged. The suit was decreed by the trial Court and the findings were affirmed by the appellate Court on 23.12.1969. It is, in these circumstances, the proprietory body came in possession of the suit land. The plaintiff has proved the sale deed Ext. A-1 of executed in the year 1966. The revenue entries were required to be corrected on the basis of sale deed Ext. A-1 whereby the suit land was purchased rt alongwith the Shamlat land. There is no merit in the contention of Mr. Ajay Sharma, Advocate that the Shamlat land could not be sold by defendants No. 4 & 5, namely Jagrup and Santokh Singh since they themselves have claimed to have purchased the same piece of land.
15. Now, as far as the issue of limitation is concerned, the trial Court has framed issue No. 2 to this effect. It was decided in favour of the plaintiff.
The learned trial Court has rightly come to the conclusion that the cause of action has arisen to her to file the suit when defendants No. 4 & 5 have sold the land to defendants No. 1 to 3. The suit was filed within 12 years from the sale. Thus, Article 12 of the Limitation Act, was not attracted in this case.
16. Neither Karam Singh nor Gulwant Singh or Tani Ram were necessary parties for the adjudication of the lis.The plaintiff has purchased the land from defendants No. 4 & 5, namely, Jagrup and Santokh Singh and Naresh Devi has sold the land to her in the year 1966. The substantial questions of law are answered accordingly.
::: Downloaded on - 15/04/2017 19:51:38 :::HCHP 717. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending application(s), if any.
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March 02, 2016, ( Rajiv Sharma ),
(karan) Judge.
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