Judgment Rajiv Sharma, J. 1. This Regular First Appeal is directed against the judgment and decree dated 27.2.2009 rendered by the learned District Judge (Forest), Shimla in Suit No. 18-S/1 of 2008/05. 2. Material facts necessary for the adjudication of this Regular First Appeal are that the appellant-plaintiff (hereinafter referred to as the ‘plaintiff for convenience sake) is son of late Sh. Madan Mohan Jagga. Madan Mohan Jagga expired on 13.6.2002 at Sundernagar. Plaintiff was born at Sundernagar. He had no knowledge about the purchase of suit property by his father Madan Mohan Jagga and proforma defendant No. 15 Rajinder Singh. He after the death of Madan Mohan Jagga, in the month of July, 2004, took possession of sale certificate regarding the suit property. Thereafter, he collected the revenue papers and came to know that his father had purchased the entire suit property alongwith defendant No.15 Rajinder Singh. According to him, Madan Mohan Jagga and Rajinder Singh were displaced persons from West Punjab and the suit property was evacuee property. It was purchased by them on 18.9.1972 for consideration of ` 11,800/-. Smt. Suharun Devi widow of late Sh. Mohan Lal was wrongly recorded as non-occupancy tenant whereas the suit property being Banjar Kadeem and Gair Mumkin Nali could not have been given to any tenant. The suit property was previously evacuee property on which no tenant could be inducted and, therefore, she could only be termed as in unauthorized occupation. Smt. Suharun Devi in connivance with the revenue staff got the proprietary rights of the suit property conferred upon her by mutation No. 389 dated 30.9.1989. These entries according to the plaintiff were wrong, illegal and against the law. Smt. Suharun Devi executed a ‘will’ in favour of defendants No. 1 to 7 as arrayed in the original suit. These defendants sold different parts of the land to other contesting defendants through different sale deeds. According to the plaintiff, all these sale deeds were unauthorized, illegal and unwarranted. According to him, the ‘will’ executed by Suharun Devi was also illegal, null and void. 3. Suit was contested by defendants No.1 to 7 by filing separate written statement. According to them, Smt. Suharun Devi was tenant in the suit property and in the year 1989, proprietary rights were conferred upon her under the provisions of Himachal Pradesh Tenancy and Land Reforms Act, 1972. 3. Suit was contested by defendants No.1 to 7 by filing separate written statement. According to them, Smt. Suharun Devi was tenant in the suit property and in the year 1989, proprietary rights were conferred upon her under the provisions of Himachal Pradesh Tenancy and Land Reforms Act, 1972. The property was acquired by these defendants on the basis of ‘will’ executed by Smt. Suharun Devi on 17.10.1985. The valuation of the suit for the purpose of court fee and jurisdiction was also disputed. According to these defendants, conferment of proprietary rights upon Smt. Suharun Devi took place in the presence of Madan Mohan Jagga and Rajinder Singh, but they did not challenge these proceedings during the life time of Smt. Suharun Devi. According to them, since the plaintiff was not in possession of the suit land, therefore, simple suit for declaration and injunction was not maintainable. 4. Defendants No. 11 and 12, namely, Trilok Chauhan and Rajesh Chauhan also contested the suit by filing written statement. They adopted the grounds taken by defendants No. 1 to 7. According to them, they were bona fide purchaser of the land without notice for consideration. They have prayed for the dismissal of the suit. 5. Defendants No. 8 to 10 did not file any written statement. Plaintiff filed replication and reiterated the grounds taken in the plaint. Learned District Judge (Forest), Shimla framed issues on 14.9.2006. He dismissed the suit on 27.2.2009. Hence, the present Regular First Appeal against the judgment and decree dated 27.2.2009. 6. Mr. G.R. Palsara has vehemently argued that the trial court has misread and misconstrued the oral as well as documentary evidence. He has also argued that the trial court has not even discussed the statements of the witnesses produced by the parties. He has further contended that the proprietary rights have been conferred upon Suharun Devi by Assistant Collector Grade-II which is in contravention of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. According to him, defendants have not placed on record any order on the basis of which revenue entries were changed whereby the name of Smt. Suharun Devi was reflected as tenant. He has further contended that the nature of the land was Banjar Kadeem and Gair Mumkin Nali, thus, she could not be conferred with any proprietary rights. According to him, defendants have not placed on record any order on the basis of which revenue entries were changed whereby the name of Smt. Suharun Devi was reflected as tenant. He has further contended that the nature of the land was Banjar Kadeem and Gair Mumkin Nali, thus, she could not be conferred with any proprietary rights. He also contended that the Government of Punjab was also shown in possession with Suharun Devi in the copies of Jamabandi for the years 1975-76 and 1980-81. He lastly contended that Suharun Devi could not execute will dated 17.10.1985 since the proprietary rights according to the contesting defendants have been conferred upon her in the year 1989. 7. Mr. G.D. Verma, learned Senior Advocate has supported the judgment and decree passed by trial court. 8. I have heard the learned counsel for the parties and have perused the records and pleadings carefully. 9. Surprisingly, learned trial court has not discussed the statements of witnesses at all. He was bound to discuss the entire oral as well as documentary evidence. Plaintiff has produced four witnesses, including himself. Defendants have produced two witnesses, i.e. DW-1 Jeet Ram and DW-2 Trilok Chauhan. 10. It is not in dispute that father of the plaintiff Madan Mohan Jagga and Rajinder Singh purchased the suit property by way of public auction. Public auction was held on 30.8.1972. Sale was confirmed by the Settlement Officer on 18.9.1972 as per Ex.PW-3/B. Sale certificate was also issued by the competent authority vide Ex.PW-1/A. PW-1/A is the photocopy, but PW-1 Smt. Jamna Devi has testified that the sale certificate Ex.PW-1/A is true copy as per record. In her cross-examination, she has deposed that she did not know whether the sale certificate was ever cancelled. Defendants have also not led any tangible evidence to this effect. 11. PW-2 Gian Chand has proved the copy of death certificate Ex.PW-2/A of late Sh. Madan Mohan Jagga. 12. Plaintiff has appeared as PW-3. According to him, he was born on 6.8.1985. His father died on 13.6.2002. He has shown documents to his Lawyer after the death of his father. He told him that as per sale certificate, his father and Rajinder Singh have purchased the property for consideration of ` 11,800/-. He proved copy of mutation Ex.PW-3/C, Ex.PW-3/D, copy of jamabandi for the years 1975-76 and 1980-81 Ex.PW-1/E and Ex.PW-3/F. 13. His father died on 13.6.2002. He has shown documents to his Lawyer after the death of his father. He told him that as per sale certificate, his father and Rajinder Singh have purchased the property for consideration of ` 11,800/-. He proved copy of mutation Ex.PW-3/C, Ex.PW-3/D, copy of jamabandi for the years 1975-76 and 1980-81 Ex.PW-1/E and Ex.PW-3/F. 13. PW-4 Parshinder Kaur is the mother of plaintiff. According to her, her husband died on 13.6.2002. She handed over the copy of sale certificate to her son. Her son came to know, after consultation with the Lawyer, that her husband had purchased the land at Shimla. Revenue papers were obtained from the Revenue Department and she came to know that the suit property was purchased by her husband. 14. DW-1 Jeet Ram is the power of attorney of defendants No. 1 to 7. He has proved the copy of the power of attorney vide Ex.DW-1/A. According to him, Suharun Devi was his grand-mother. She has executed the ‘will’ and the same was registered. According to him, they succeeded the property on the basis of ‘will’. His brother Roop Lal died in the year 1988 and his estate was succeeded by his legal heirs, vide mutation No. 232. He has also proved on record copy of mutation Ex.DW-1/C. He has also proved copy of ‘will’ Ex.DW-1/E. Smt. Suharun died on 10.3.2002. Tenants were residing in the property. He has sold the property to Nokh Ram, Mahinder Singh, Trilok Chand and Lachhi Ram. He has only heard that Suharun Devi used to live at Kaithu. In his cross-examination, he has admitted that Suharun Devi was not cultivating the land, but volunteered that she was grazing the cattle and cultivating the land. He has also admitted that when the ‘will’ was executed, land was not in her name. He has also categorically admitted that no revenue was ever paid to the Government. 15. DW-2 Trilok Chauhan has deposed that he and his brother Rajesh Chauhan have purchased 520 square meters of land in Kaithu from Jeet Ram. They have seen the revenue records before purchasing the land. The land was purchased in the year 2004. This is the entire oral as well as documentary evidence led by the parties. 16. 15. DW-2 Trilok Chauhan has deposed that he and his brother Rajesh Chauhan have purchased 520 square meters of land in Kaithu from Jeet Ram. They have seen the revenue records before purchasing the land. The land was purchased in the year 2004. This is the entire oral as well as documentary evidence led by the parties. 16. It is evident from Ex.PW-3/B that plaintiff’s father and Rajinder Singh have purchased the land comprised of Khasra No.119 in the public auction held on 18.8.1972. Sale was confirmed by the Settlement Officer. Thereafter, the sale certificate was issued, which has been proved on record by PW-1 Smt. Jamna Devi. The mutation was attested in the name of plaintiff’s father and Rajinder Singh vide Ex.PW-3/C. In the copy of jamabandi for the year 1975-76 Ex.PW-3/E name of Suharun Devi has been mentioned alongwith Punjab Government. Similarly, in the copy of jamabandi for the year 1980-81 Ex.PW-3/F, the same entry is repeated. Defendants have not led any tangible evidence to establish how the name of Suharun Devi has been mentioned in the Jamabandis. The ownership was in the name of Central Government. She could be shown as tenant only on the basis of some orders passed by the Revenue Officer. The Assistant Collector Grade-II has attested the mutation in favour of Suharun Devi vide Ex.PW-3/D on 29.8.1989. The defendants have not led any evidence to prove that Rajinder Singh or Madan Mohan Jagga was ever served before the entries were changed to their detriment. On the reverse side of Ex.PW-3/D, the proprietary rights have been conferred upon Suharun Devi. This order has been passed by Assistant Collector Grade-II. Neither Rajinder Singh nor Madan Mohan Jagga was present at the time when the proprietary rights were conferred upon Suharun Devi. The proprietary rights, under the Himachal Pradesh Tenancy and Land Reforms Act, 1972, could only be conferred by the Assistant Collector Grade-I. The order passed by Assistant Collector Grade-II, conferring the proprietary rights upon Suharun Devi was illegal, more particularly, when neither Rajinder Singh nor Madan Mohan was present. 17. According to the defendants, they have succeeded to the property of Smt. Suharun Devi on the basis of ‘will’ Ex.DW-1/E dated 17.10.1985. DW-1 Jeet Ram has admitted in his cross-examination that Smt. Suharun Devi was not owner of the suit land at the time of execution of the ‘will’. 17. According to the defendants, they have succeeded to the property of Smt. Suharun Devi on the basis of ‘will’ Ex.DW-1/E dated 17.10.1985. DW-1 Jeet Ram has admitted in his cross-examination that Smt. Suharun Devi was not owner of the suit land at the time of execution of the ‘will’. He has also admitted that no revenue was ever paid to the Government. Defendants have not produced any documentary evidence to establish that Suharun Devi was paying any rent to the owners. It is settled law that the tenancy is a bilateral act and the payment of rent, in any, form is sine-qua-non to establish the tenancy. The nature of the suit land is Banjar Kadeem and Gair Mumkin Nali. DW-1 Jeet Ram has admitted that he never seen Suharun Devi cultivating the land though voluntarily stated that she was grazing cattle and cultivating the land. He has no knowledge that Suharun Devi was living at Kaithu. He has only heard that Suharun Devi was residing at Kaithu also. 18. The court below has erred in law by coming to the conclusion that the plaintiff has simply filed the suit for declaration and injunction without possession. It is more than clear from the prayer clause that the plaintiff besides, seeking relief of declaration and injunction has also prayed for decree of possession. The mutation was attested in favour of Smt. Suharun Devi on 30.9.1989 in the absence of Rajinder Singh and Madan Mohan Jagga. Thus, there was no occasion for them to agitate the same before the competent authority. A specific plea was raised before the trial court that proprietary rights could not be conferred on Suharun Devi by Assistant Collector Grade-II. The trial court has not discussed this issue at all except making a passing reference in para 15 of the judgment. The plaintiff came to know about the sale certificate only after the death of his father and thereafter he consulted the Lawyer and after obtaining the revenue papers, the suit was filed on 20.1.2006. Thus, the suit was within limitation and the findings recorded by the trial court to the contrary are not sustainable. The defendants No.1 to 7 have never taken the plea of adverse possession. The plea of adverse possession has only been taken by defendants No. 11 and 12 in their written statement. However, no evidence has been led to prove the adverse possession. The defendants No.1 to 7 have never taken the plea of adverse possession. The plea of adverse possession has only been taken by defendants No. 11 and 12 in their written statement. However, no evidence has been led to prove the adverse possession. No period of commencement of adverse possession has been mentioned in the pleadings. This plea was also not open to defendants No.11 and 12, who have only purchased the land from defendants No.1 to 7. However, surprisingly the trial court in para 16 of the judgment has held that after 1989, the possession of Suharun Devi can be taken to be open, continuous, uninterrupted and hostile to the true owners, i.e. Madan Mohan Jagga and Rajinder Singh. It was not open for him to make out a case for the defendants of adverse possession, which was not admittedly pleaded by them. It is settled law that to claim adverse possession, the party must show the date of commencement of open, continuous, uninterrupted and hostile possession. The defendants have purchased the land, which could not vest on Suharun Devi. Defendants No.1 to 7 could not sell the suit land to the contesting defendants. Thus, they are not entitled to benefit of section 41 of the Transfer of Property Act. Defendants No.1 to 7 have claimed to have succeeded to the property of Suharun Devi on the basis of ‘will’ dated 17.10.1985 on which date no proprietary rights were conferred upon her. 19. The matter is also required to be seen from another angle. According to the defendants, proprietary rights were conferred upon Smt. Suharun Devi in the year 1989. However, the fact of the matter is that defendants have sold the land to contesting defendants within a period of ten years from the date of conferment of proprietary rights. There is a specific bar under section 113 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 whereby it is stipulated that no land in respect of which proprietary rights have been acquired under Chapter-X could be transferred by sale, mortgage, gift or otherwise during a period of ten years by a person from the date he acquires proprietary rights. Thus, the sale was in breach of mandatory provisions of section 113 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. Thus, the sale was in breach of mandatory provisions of section 113 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. It is stipulated in sub-section (2) of section 113 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 that any transfer of land made in contravention of sub-section (1) shall be void and no registering authority shall register any document evidencing such transfer under the Indian Registration Act, 1908. Thus, the registering authority, in the case in hand, could not register the sale deeds in favour of contesting defendants to whom the land has been sold by defendants No.1 to 7. The civil court, in the present case, has the jurisdiction since the proprietary rights have been conferred by the Assistant Collector Grade-II instead of Assistant Collector Grade-I. This illegality can be gone into by the Civil Court. There is also violation of principle of natural justice since neither Rajinder Singh nor Madan Mohan Jagga was present at the time when the mutations were attested in favour of Suharun Devi and the proprietary rights were conferred upon her. 20. The matter was also referred to the learned Mediator Sh. Dilip Sharma, Senior Advocate. However, he has reported to the Court that the matter could not be settled outside the Court. 20. Accordingly, in view of observations and discussions made hereinabove, the Regular First Appeal is allowed. Judgment of the trial court dated 27.2.2009 is set aside. The suit of the plaintiff is decreed with costs. The decree for possession is passed in favour of plaintiff and against the defendants. The proprietary rights conferred upon Smt. Suharun Devi, attestation of mutation in her favour on 30.9.1989 and subsequent sale deeds made by defendants No.1 to 7 in favour of defendants No. 8, 9, 10, 11 and 12 are declared null and void. Pending application(s), if any, also stands disposed of.