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2014 DIGILAW 162 (HP)

Babu Ram v. Rasilo

2014-03-06

RAJIV SHARMA

body2014
Judgment : Per Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 10.5.2012, rendered by learned Additional District Judge, Fast Track Court, Kangra at Dharamshala in RBT C.A. No.9-N/XIII/2011/08. 2. “Key facts” necessary for the adjudication of this Regular Second Appeal are that the appellant/plaintiff (hereinafter referred to as the “plaintiff” for the sake of convenience) filed a suit for declaration against the respondents/defendants (hereinafter referred to as the “defendants” for the sake of convenience). According to the plaintiff, the suit land was allotted to defendant No.1, Rasilo, under the H.P. Village Common Lands, Vesting and Utilization Scheme, 1974 on 13.8.1980. The suit land could not be alienated by defendant No.1 w.e.f. 13.8.1980 to 12.8.2000. According to him, he was the only son of defendant No.1 and had every right, title and interest in the suit land. The suit land was allotted to defendant No.1 being landless for the maintenance of his family members. Defendant No.1 unauthorizedly sold the suit land to defendants No. 2 and 3 vide sale deed document No.358 dated 20.4.1998. Defendants No. 2 and 3 were trying to get the mutation sanctioned in their favour. 3. The suit was contested by the defendants. It was admitted that the suit land was allotted to defendant No.1 under Common Lands, Vesting and Utilization Scheme, 1974. It was denied that the land could not be alienated for a period of twenty years. Defendant No.1 had sold the suit land to defendants No. 2 and 3 for a sale consideration of Rs.80,000/- to the extent of 0-03-84 H.M. and 0-34-91 H.M.. They were in possession of the suit land. The suit land was alienated by defendant No.1 in favour of defendants No. 2 and 3 after a period of ten years. Defendant No.1 had absolute title over the suit land and the suit land was transferred to defendants No. 2 and 3 by way of registered sale deed. 4. Learned trial court framed the issues on 24.6.2000 and dismissed the suit vide judgment and decree dated 26.3.2008. 5. Plaintiff feeling aggrieved by judgment and decree dated 26.3.2008 filed an appeal before learned first appellate court, who vide judgment and decree dated 10.5.2012 dismissed the same. Hence, this Regular Second Appeal. 6. Mr. 4. Learned trial court framed the issues on 24.6.2000 and dismissed the suit vide judgment and decree dated 26.3.2008. 5. Plaintiff feeling aggrieved by judgment and decree dated 26.3.2008 filed an appeal before learned first appellate court, who vide judgment and decree dated 10.5.2012 dismissed the same. Hence, this Regular Second Appeal. 6. Mr. Naresh Kaul, learned Advocate, on the basis of substantial questions of law framed, vehemently argued that the suit land could not be alienated by defendant No.1 in favour of defendants No. 2 and 3 within a period of twenty years. According to him, the sale deed was illegal. He lastly contended that both the courts below have not correctly appreciated the oral as well as documentary evidence. 7. Mr. Virender Singh Rathour, learned Advocate, appearing on behalf of respondents No. 2 and 3, has supported the impugned judgments and decrees passed by the courts below. 8. I have heard learned counsel for the parties and have gone through the record carefully. 9. The plaintiff, Babu Ram, appeared as PW1. According to him, the suit land is measuring 10 Kanals 10 Marlas. The suit land could not be sold upto the year 2000. 10. PW2 Khazan Singh and PW3 Faqir Chand deposed that the suit land was allotted to father of the plaintiff. Defendant No.1, Rasilo also admitted in his cross-examination that the suit land was allotted to him under the H.P. Common Lands, Vesting and Utilization Scheme 1974.The mutation to this effect was sanctioned on 13.8.1980. Six witnesses were examined on behalf of the defendants, namely, DW1 Rasilo, DW2 Kashmir Chand, DW3 Baldev Singh, DW4 Bishan Singh, DW5 Sushil Sahotra and DW6 Vijay Kumar and also produced documentary evidence i.e. Ext. D-1 sale deed, Ext. D-2 photocopy of letter, Ext.D-3 copy of Jamabandi for the year 1996-97, Ext. D-4 copy of Jamabandi for the year 1996-97, Ext. DA copy of Jamabandi for the year 1978-79, Ext. DB copy of Missal Haquiat Bandobast Jadeed for the year 1981-82, Ext. DC copy of Jamabandi for the year 1991-92 and Ext. DD copy of Jamabandi for the year 1996-97. 11. Though, according to Jamabandi for the year 1996-97, Ext. P-1, defendant No.1 could not alienate the suit land upto 12.8.2000, however as per copy of Missal Haquiat Bandobast Jadeed for the year 1981-82, Ext. DB, defendant No.1 was debarred to alienate the suit land upto 12.8.1990. DD copy of Jamabandi for the year 1996-97. 11. Though, according to Jamabandi for the year 1996-97, Ext. P-1, defendant No.1 could not alienate the suit land upto 12.8.2000, however as per copy of Missal Haquiat Bandobast Jadeed for the year 1981-82, Ext. DB, defendant No.1 was debarred to alienate the suit land upto 12.8.1990. The Deputy Secretary (Revenue) issued a letter dated 2.12.1991, Ext. D-2 clarifying therein that notification dated 9.12.1987 would apply prospectively and not retrospectively. The bar not to alienate the land for twenty years was imposed after the land was allotted to defendant No.1 on 13.8.1980. In view of letter Ext.D-2, defendant No.1 could not alienate the suit land upto 12.8.1990. The sale deed was executed in favour of defendants No. 2 and 3 on 20.4.1998. There was no restriction on defendant No.1 to execute sale deed in favour of defendants No. 2 and 3 after ten years. Ten years elapsed on 12.8.1990. The sale deed has been duly proved by defendants No. 2 and 3. Defendant No.1 deposed that he had sold the suit land in favour of defendants No. 2 and 3 vide sale deed, Ext. D-1. He has identified his signatures on sale deed vide Ext. DW1/A and DW1/H. DW2 Kashmir, marginal witness to sale deed has also admitted his signatures vide Ext. DW2/A. DW3 Baldev, who is another marginal witness to the sale deed, has also admitted his signatures on sale deed vide Ext. DW3/A. DW5 S.K. Sahotra, Advocate, has testified that he had drafted the sale deed, Ext.D1 at the instance of defendant No.1. 12. Division Bench of this Court in Parshotam and ors. vs. State of H.P. and ors., 1990 (2) Sim. L.C.206 has held that the land after assigning to predecessor of petitioners ceased to be land belonging to the Government. Subsequent change in policy of Government cannot affect the concluded transactions. Division Bench has held as under:- “2. This notification will not apply to a concluded transaction. Bachan Singh had obtained allotment of land subject to only to the condition that no alienation will be made for a period of 10 years from the date on which he took possession of the land. The alteration effected by the notification issued by the Governor can only apply to transactions subsequent to the date of the said notification. Bachan Singh had obtained allotment of land subject to only to the condition that no alienation will be made for a period of 10 years from the date on which he took possession of the land. The alteration effected by the notification issued by the Governor can only apply to transactions subsequent to the date of the said notification. Section 3 of the Government Grants Act, 1895, enacts: “All provisions, restrictions, condition and limitations over contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor, any rule of law, statute or enactment of the Legislature to the contrary notwithstanding.” 3. In Chairman Ramappa Sahakari Samyakta Besava Sangh Ltd. and another v. State of Mysore and others, AIR 1974 Sc 856 , the Supreme Court stated at page 858: “………… Certainly, if an indefeasible right in property has been vested in the petitioners, as the High Court thinks, there may be something to be said in favour of its ultimate finding, but we have no doubt whatever that the land belonged to Government, that it was free to give leases or rights to cultivate to whomsoever it chose, that its policies could change from time to time in accordance with its own social objectives and that any order modifying or nullifying the earlier policy decision, by a subsequent resolution cannot be deprivatory of anyone’s rights…………” 4. In the present case, the land after assignment to the petitioners’ predecessor Bachan Singh ceased to be the land belonging to the Government. The bar against alienation for a period of 10 years was a covenant running with the land and any subsequent change in the policy of the Government cannot affect the concluded transactions. We, therefore, direct the second respondent to register the document dated April 23, 1990, if presented before him within one month from today, subject to other objections(s), if any, in regard to its registration.” 13. Learned courts below have correctly appreciated the oral as well as documentary evidence. Defendant No.1 had absolute right to alienate the suit land after a period of ten years, i.e. 12.8.1990. 14. Accordingly, in view of the observations and analysis made hereinabove, there is no merit in the Regular Second Appeal and the same is dismissed. Pending application(s), if any, also stands dismissed. There shall, however, be no order as to costs.