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2011 DIGILAW 2193 (HP)

Julmi v. Diwana Alias Diwan Chand

2011-05-30

KULDIP SINGH

body2011
JUDGMENT : Kuldip Singh, J. This appeal has been admitted on the following substantial questions of law:- 1. Whether prior to 07.12.1979, the transfer of possession of the land was a sine-qua-non to effect valid oral sale in order to transfer the land? 2. Whether the plaintiff has proved as required under law, the oral sale of the suit land on 07.11.1955 in his favour by the predecessor-in-interest of the defendants? 2. The defendants have assailed the judgment, decree dated 12.8.2004 passed by the learned District Judge, Kangra at Dharamshala in Civil Appeal No. 96-K/XIII-2008 reversing judgment, decree dated 29.5.2003 passed by learned Sub Judge 1st Class (I), Kangra in Civil Suit No. 64 of 2000. 3. The pleaded case of the respondent, who was plaintiff is that the suit land vide jamabandi 1994-95 is recorded in the ownership and possession of the appellants. The suit land earlier belonged to the predecessor-in-interest of the appellants who by way of oral sale sold the suit land with possession to respondent 16/183 share on 7.11.1955 in Khasra No. 21 measuring 36 Kanals 12 Marlas for Rs. 48/- and mutation was attested on 8.1.1955. The mutation was reviewed and area was calculated 2 Kanals 15 Marlas. The entries were not incorporated in the subsequent jamabandis and vendor Rasila Ram is continuing in possession in the revenue record even though, the respondent was put into possession by Rasila. 4. On account of wrong entries the mutation of estate of Rasila Ram was attested in favour of the appellants. The respondent is coming in possession of the suit land along with other land purchased by him from Smt. Jamna Devi. The revenue entries are wrong. After the sale in settlement Khasra Nos. 354 to 360, 362 were carved out. The area was also converted from Kanals to Hectares. The total land earlier was 36 Kanals 12 Marlas which has now been shown as 1-32-09 Hectares on conversion. The suit land has been wrongly entered in the ownership of appellants, who have no right to interfere in the ownership and possession of the respondent. On these pleadings, the respondent had filed suit for declaration that entries showing ownership in favour of the appellants are wrong, illegal and appellants be restrained by way of permanent prohibitory injunction from interfering in the suit land in the ownership of the respondent over the suit land. On these pleadings, the respondent had filed suit for declaration that entries showing ownership in favour of the appellants are wrong, illegal and appellants be restrained by way of permanent prohibitory injunction from interfering in the suit land in the ownership of the respondent over the suit land. In the alternative, decree for possession. 5. The appellants contested the suit and took preliminary objections of maintainability, limitation, estoppel, acquiescence, waiver. There was no sale by the predecessor of appellants in favour of respondent. There is no cause of action in favour of the respondent, nor respondent has locus-standi to file the suit. The objections of valuation and jurisdiction were also taken. 6. On merits, oral sale by Rasila in favour of respondent was denied, the sale if any has been made in collusion with revenue staff. It has been denied that possession of the suit land was handed over to respondent. The appellants asserted their possession over the suit land. The mutation in favour of respondent is result of fraud. The mutation of estate of Rasila in favour of the appellants is correct. The dismissal of the suit was prayed. The replication was filed. 7. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is owner in possession of suit land? OPP 2. Whether the plaintiff is entitled to injunction as prayed? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the suit is time barred? OPD 5. Whether the plaintiff is estopped by his act, conduct, acquiescence and waiver? OPD 6. Whether the plaintiff has no locus standi to sue? OPD 7. Whether the plaintiff has no cause of action? OPD 8. Whether the suit is not properly valued? If so, what is the correct valuation? OPD 9. Relief. 8. The issues No.1, 2 and 8 were answered in negative and issues No.3 to 7 in affirmative and the suit was dismissed on 29.5.2003. The respondent filed the appeal which was allowed on 12.8.2004 by the learned District Judge and the suit was decreed for possession of the land comprised in Khasra Nos. 440 and 449 measuring 0-10-17 Hectares, situated at Mohal Harchakkian vide jamabandi 1994-95 Ex.P-1. The defendants are in second appeal, which has been admitted on the substantial questions of law noticed above. 9. 440 and 449 measuring 0-10-17 Hectares, situated at Mohal Harchakkian vide jamabandi 1994-95 Ex.P-1. The defendants are in second appeal, which has been admitted on the substantial questions of law noticed above. 9. I have heard the learned counsel for the parties and have also gone through the record. It has been submitted on behalf of the appellants that the learned District Judge has erred in returning the finding that predecessor of appellants had sold the suit land by way of oral sale in favour of the respondent. It has been submitted that the possession of the suit land was not transferred to the respondent which is sine-qua-non for completing the oral sale. The learned District Judge has mis-construed and mis-interpreted the oral and documentary evidence in returning the finding in favour of the respondent of oral sale of the suit land by the predecessor of appellants. The learned counsel for the appellants has prayed for acceptance of the appeal. 10. The learned Senior Advocate appearing on behalf of the respondent has submitted that the suit land was transferred by predecessor-in-interest of the appellants to respondent which has been proved on record. The possession was also handed over to the respondent. The learned District Judge has rightly appreciated the material on record. The re-appreciation of the evidence in second appeal is not permissible. No substantial question of law is involved in the appeal. The prayer has been made for dismissal of the appeal. 11. The aforesaid substantial questions of law are interconnected, therefore, both the substantial questions of law are taken up together for consideration. In support of the submissions that for completing the oral sale, delivery of possession is necessary, the learned counsel for the appellants has relied Parikhit Thapa v. Nidhi Thapa AIR 1954 Orissa 31 and Jatinder Singh v. State of H.P. 1993 (2) Sim.L.C. 17. There is no dispute to the legal proposition that for completing the oral sale, there must be convincing evidence of payment of sale consideration by the purchaser to the seller and the possession of the property in question has been handed over to the purchaser. The sale would be completed when the seller has transferred the ownership and accepted the price. The sale would be completed when the seller has transferred the ownership and accepted the price. It has also been argued on behalf of the appellants that when the oral evidence is equally balanced, reliance has to be placed on the entries of the revenue record and this argument has been supported with the help of judgment reported as Dumnu Ram v. Mandan Lal and others Latest HLJ 2002 (HP) 461. 12. According to respondent, oral sale took place on 7.11.1955. In Jatinder Singh (supra), it has been held that it is not disputed that prior to 7.12.1970, provisions of Section 54 of the Transfer of Property Act were not applicable to the Himachal Pradesh and it was not necessary to comply with the requirement of Section 54 of the Transfer of Property Act in order to have a valid sale. Even otherwise, under Section 54 of the Transfer of Property Act, sale of property having consideration of less than Rs. 100/- is not required to be made necessarily by way of registered document. Thus, on 7.11.1955 oral sale of property having sale price of Rs. 48/- was permissible. 13. PW-1 Diwan Chand has stated that he had purchased 3 Kanals 4 Marlas of land from Rasila Ram for Rs. 48/- on 8.11.1955 and the mutation was attested. In the year 1997 he had told the appellants that he had purchased the suit land and since then he had been coming in possession of the suit land. The entries in the name of the appellants of the suit land are wrong. The appellants have no right, interest over the suit land. PW-2 Mastan Singh has stated that possession of the suit land is of Diwan Chand since he had purchased the suit land. 14. DW-1 Smt.Julmi Devi has stated that appellants are in possession of the suit land. The respondent has no concern with the suit land. She has denied that her father on 7.11.1955 had sold his share to respondent for Rs. 48/-. She has admitted that the share of her father was 2 Kanals 15 Marlas. DW-2 Sukha Ram has shown his ignorance that on 7.11.1955 Rasila had sold suit land in favour of Diwan Chand. 15. Ex.P-12 is the copy of mutation No. 127 dated 8.11.1955 indicating that Rasila Ram had sold his 16/183 share in khasra No.21 measuring 3 Kanals 4 Marlas for Rs. DW-2 Sukha Ram has shown his ignorance that on 7.11.1955 Rasila had sold suit land in favour of Diwan Chand. 15. Ex.P-12 is the copy of mutation No. 127 dated 8.11.1955 indicating that Rasila Ram had sold his 16/183 share in khasra No.21 measuring 3 Kanals 4 Marlas for Rs. 48/- and handed over its possession to Diwan Singh. The learned District Judge has recorded a finding that there is no dispute that mutation No. 127 pertains to suit land which is now represented by Khasra Nos. 440 and 449 and old Khasra Nos. 357 and 359 as per Ex.D-1. This finding of the learned District Judge so far identity of the suit land is concerned, has not been challenged by either side. Khasra No. 357 as per jamabandi 1975-76 Ex.-3 is recorded in possession of Diwan Chand, similar is the position in jamabandi 1984-85 Ex.P-4. The parties admitted before the learned District Judge that the suit land was partitioned and is no more joint. The name of respondent was deleted from the revenue record and successors of Rasila Ram were shown in possession of the suit land in jamabandi 1994-95 Ex.P-1. In these circumstances, the respondent has legitimate grievance to assert his possession of the suit land and in alternative to claim possession of the suit land. 16. Now reverting again to the completion of oral sale, PW-1 Diwan Chand has specifically stated that he had purchased the suit land from Rasila Ram on payment of Rs. 48/-. The possession of the suit land was handed over to him. The delivery of possession has been corroborated by PW-2 Mastan Singh. DW-1 Smt. Julmi has stated that she was born in 1971, hence her denial that her father Rasila Ram had not sold the land on 7.11.1955 is inconsequential. DW-2 Sukha Ram has shown his ignorance regarding the sale dated 7.11.1955. In mutation Ex.P-12, it has been clearly stated that possession was handed over to respondent by Rasila Ram. Thus, it can be safely concluded that the possession of the land in dispute was handed over to respondent at the time of oral sale after receiving Rs. 48/- by vendor Rasila Ram. The sale was thus complete. Somehow during consolidation and in partition, the name of respondent was scored out and the entry of legal representatives of Rasila Ram was made owner in possession of the suit land. 48/- by vendor Rasila Ram. The sale was thus complete. Somehow during consolidation and in partition, the name of respondent was scored out and the entry of legal representatives of Rasila Ram was made owner in possession of the suit land. In these circumstances, no fault can be found when the learned District Judge has decreed the suit of the respondent for possession after holding that respondent is owner of the suit land. The learned District Judge has rightly appreciated the material on record. The substantial questions of law No. 1 and 2, referred above, are decided against the appellants. 17. In view of above, the appeal is dismissed with no order as to costs.