JUDGMENT : SURESHWAR THAKUR, J. 1. The instant appeal is directed, against, the concurrently recorded verdicts by both the learned Courts below, whereby, the plaintiff's suit for rendition, of, a decree for declaration, as well as for, rendition of a decree for permanent prohibitory injunction qua the suit khasra number(s), was, hence dismissed. 2. Briefly stated the facts of the case are that the originally, the suit was instituted by one Shri Ranjan Sharma. During the pendency of the suit, he sold the property in question to the present plaintiffs. It is pleaded that original plaintiff was owner in exclusive possession of the Khasra No 262, 264, 267, 268 and 269, measuring 211 sq. meters and Khasra No.263 measuring 195 Sq. Meters, situated in mauja Thodo. He was in joint possession alongwith proforma defendants in respect of Khasra Nos. 261 and 266, measuring 179 sq. meters situated in mauja Thodo, Tehsil Solan. Defendant Yoginder Pal purchased Khasra No.244, 245, 246 and 265 measuring 412 sq. meters in mauja Thodo. He had also purchased ¼ share out of Khasra No.263 through sale deed of 20.04.1997 from Smt. Asha Devi by fraudulent means. It was wrongly recited in the sale deed that Smt. Asha Devi was owner in possession of said land to the extent of 1/4th share. In fact, Smt. Asha Devi did not possess any portion of Khasra No.263. The legal heirs of deceased Rai Bahadur Bishamber Nath, owner of property in question, had separated their shares by way of registered document of 4.8.1936. The said document was registered with the Registrar of Bhagat Princely State. The said document was also accompanied by detailed site plan vide which the properties were divided specifically inter se the legal representatives of deceased Rai Bahadur Bishamber Nath. The allotment of properties was shown in the map specifically with the aid of different inks. Different portions of the property were allotted separately share wise to S/Sh. Ram Nath, Amar Nath, Shyam Nath and Dr. Prem Nath, who happended to be the sons of Rai Bahadur Bishamber Nath. There was severance of joint character of the property in question inter se the sons of Rai Bahadur Bishamber Nath. Each portion came to the possession of each owner in exclusive manner and said arrangement was also executed on the spot.
Prem Nath, who happended to be the sons of Rai Bahadur Bishamber Nath. There was severance of joint character of the property in question inter se the sons of Rai Bahadur Bishamber Nath. Each portion came to the possession of each owner in exclusive manner and said arrangement was also executed on the spot. The aforesaid arrangement vide which the joint character of property in question was severed inter se the parties could not be reflected in the revenue record for want of Khasra numbers. Thus, the recital in the sale deed in question to the effect that Smt. Asha Devi was having ¼th share in Khasra No.263 is wrong and illegal. Taking the undue undue advantage of the wrong recital in sale deed, defendant Yoginder Pal moved an application before the Assistant Collector 1st Grade, Solan seeking the partition of property in question. On 10.09.1992 Assistant Collector 1st Grade, Solan transferred the case to the Assistant Collector 2nd Grade, Solan in order to prepare the map of partition. The summons were issued to the parties. It was reported by Process-serving Agency that two persons namely Prem Nath and Shayam Nath had died. The dead persons were sought to be served by way of publication in the newspaper. No attempts were made to implead the legal representatives of deceased respondents. Rather, the proceedings were continued against dead persons. The entire partition proceedings were carried in an illegal manner. On the basis of illegal partition, defendant Yoginder Pal staked his claim over khasra No.263/1, measuring 48 sq. meters. Defendant has tried to encroach upon the said land in an illegal manner. Defendant has tried to occupy Khasra No.263/1 measuring 48 sq. meters in mauja Thodo in an illegal manner. The partition proceedings are not tenable in the eyes of law. Hence the suit. 3. The defendants contested the suit and filed written statement, wherein, they have taken prelimkinary objections qua locus standi, estoppel, maintainability etc. On merits, it is denied that plaintiffs are owners in exclusive possession of Khasra No. 262, 264, 267, 268 and 269 measuring 211 sq. meters and Khasra No.263, measuring 195 sq. meters. It is also disputed that they are in joint possession with proforma defendants in respect of Khasra Nos. 261 and 266, situated in mauja Thodo. The property in question is joint inter se the parties. Suit land is a part of entire joint land.
meters and Khasra No.263, measuring 195 sq. meters. It is also disputed that they are in joint possession with proforma defendants in respect of Khasra Nos. 261 and 266, situated in mauja Thodo. The property in question is joint inter se the parties. Suit land is a part of entire joint land. Replying defendant purchased Khasra Nos. 244, 245, 246 and 265, measuring 412 sq. meters. He also purchased share in Khasra No.263. It is denied that he purchased ¼ share in Khasra No. 263 vid sale deed of 20.04.1987 from Smt. Asha Devi by fraudulent means. The sale deed has been executed by deceased Asha Devi in favour of replying defendant in legal manner and recitals therein are true and correct. It is also disputed that Smt. Asha Devi was not possessing Khasra No.263. It is denied that legal heirs of deceased Rai Bahadur Bishamber Nath separated their shares and came to possession each share as owner in an exclusive manner. The document of 4.8.1936 is alleged to be false and fabricated and is the result of fraud. The document in question was not brought to the notice of any revenue officer nor its contents were made available to the revenue officer to correct the revenue record. It is denied that each co-owner came to possess his share in an exclusive manner on the spot. The property in question is jointly owned and possessed by the parties and the same is liable to be partitioned legally. Defendant preferred an application before the Assistant Collector Solan to seek its partition. The parties proceedings were conducted before the Assistant Collector 1st Grade, Solan, which the defendant came to know about certain illegalities having crept in the partition proceedings, he admitted that appeal against partition order be accepted and parties be heard in the matter afresh before the Assistant Collector 1st Grade, Solan. It is denied that any fraud was practised by replying defendant during the course of partition proceedings nor he connived with revenue officer in any manner. Smt. Asha Devi was possessing Khasra No.263 to the extent of her share and as such, she was competent to sell the same and no fraud was being payed in order to execute the sale deed. It is alleged that the property in question is joint, and partition proceedings are in progress. 4.
Smt. Asha Devi was possessing Khasra No.263 to the extent of her share and as such, she was competent to sell the same and no fraud was being payed in order to execute the sale deed. It is alleged that the property in question is joint, and partition proceedings are in progress. 4. The plaintiffs filed replication to the written statement of the defendant(s), wherein, they denied the contents of the written statement and re-affirmed and reasserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiff is owner in possession of the suit land, as alleged? OPP. 2. Whether the parties to the suit have become owner in possession over the suit property by way of adverse possession in pursuance of document dated 4.8.1936, as alleged? OPP 3. Whether the sale deed dated 20.04.1987 executed by Smt. Asha Devi in favour of defendant No.1 is wrong and illegal, as alleged? OPP 4. Whether the partition order of A.C. 1st Grade dated 4.9.1992, of the suit land is wrong and illegal, as alleged? OPP 5. Whether the defendants interfere in the suit land, as alleged? OPD. 6. Whether the plaintiffs are estopped to file the present suit, as alleged? OPD. 7. Whether the plaintiffs have no locus standi to file the present suit? OPD. 8. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiffs/appellants herein. In an appeal, preferred therefrom, by, the plaintiffs/appellants herein, before the learned First Appellate Court, the latter Court dismissed, the, appeal, and, affirmed the findings recorded by the learned trial Court. 7. Now the plaintiffs/appellants herein, has instituted the instant Regular Second Appeal, before, this Court, wherein he assails the findings, recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for hearing, this Court, admitted the appeal instituted by the plaintiffs/appellants against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether the ld.
When the appeal came up for hearing, this Court, admitted the appeal instituted by the plaintiffs/appellants against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether the ld. District Judge acted with illegality in not disposing of the application and not allowing the application for additional evidence and holding that the property had vested in the State Government when the order passed under Section 118 of the H.P. Tenancy and Land Reforms Act had been set aside by the Com missioner, Himachal Pradesh on 16.2.2000 and affirmed by the Financial Commissioner in his judgment dated 29.4.2005 and when the matter was pending adjudication which evidence was material and relevant and necessary for determining the controversy between the parties? 2. Whether the findings of the court below that the property had vested in the State Government and transfer was hit by the provisions of Section 118 of the H.P. Tenancy and Land Reforms Act is vitiated for want of adjudication by the authorities in the Act and Civil Court had the jurisdiction to adjudicate the said point? Substantial questions of Law No.1 and 2: 8. The learned first Appellate Court, had concluded, that the statutory bar, encapsulated in Section 118 of the H.P. Tenancy and Land Reforms Act, against, any evidently proven non agriculturist, without evident prior valid statutory permission being granted, hence, not acquiring title, vis-a-vis, the suit land, even through registered deeds of conveyance, rather being attracted against the plaintiffs, and, the conclusion stood rested upon the reasons, (i) the operation of the apposite order recorded by the Collector borne in Ex.D-5, remaining not stayed.
Be that as it may, during, the pendency of the instant appeal before this Court, the learned counsel appearing for the appellant, has cast an application under Order 41, Rule 27 of the CPC, application whereof, bears CMP No. 8758 of 2016, wherein, he seeks the leave of the Court to place on record, (a) Annexure A-2, carrying therein an order rendered by the Divisional Commissioner, Shimla, whereunder, he remanded, vis-a-vis, the District Collector, Solan, to, decide afresh, the apposite lis appertaining, to infraction being visited, vis-a-vis, the mandate of Section 118 of the H.P. Tenancy and Land Reforms Act, (b) besides he has appended therewith Annexure A-3, annexure whereof, comprises a verdict recorded by the District Collector, Solan, whereunder, he ordered for vestment, of the suit property in the State of Himachal Pradesh, on anvils of sale deed Nos. 268 to 271, being evidently visited with gross infraction(s), vis-a-vis, the apposite mandate, borne in Section 118 of the H.P. Tenancy and Land Reforms Act, (c) given prior to execution(s) thereof, no apposite statutory permission, being accorded, vis-a-vis, the alienees. Furthermore, he has appended therewith Annexures A-4 and A-5, whereunder, the operation of the order borne, in Annexure A-3, stands stayed. On anvil of the aforestated annexures, appended with the application, cast under the provisions of Order 41, Rule 27 of the CPC, the learned counsel appearing, for the appellant, has contended, (d) qua the reasons, assigned by the learned First Appellate Court, for, concluding, qua the order borne in Ex. D-5, for want of its operation being stayed, hence, its holding force and validity at the time of rendering, of, a verdict upon the apt civil appeal, per se, hence wanting, in, legal strength and vigour.
D-5, for want of its operation being stayed, hence, its holding force and validity at the time of rendering, of, a verdict upon the apt civil appeal, per se, hence wanting, in, legal strength and vigour. Nowat, with the aforesaid disclosures, borne in Annexure A-4 and A-5, whereunder, the operation of the order recorded on 20.04.2009, was stayed, under latter orders whereof, hence, the vestment of the suit land, was ordered to be made, vis-a-vis, the State of Himachal Pradesh, given visible infraction being begotten, with, the statutory mandate, of, Section 118 of the H.P. Tenancy and Land Reforms Act, (a) does constrain this Court to conclude, that the, leave for theirs being adduced into evidence, being both just and essential, for hence making a firm conclusion, qua whether the impugned verdict, rested upon, Ex.D-5, for want of operation thereof, being stayed, hence acquiring any valid conclusivity, and, whereunder the suit land, stood, ordered to vest, in, the State of Himachal Pradesh, hence imperatively garnering any legal strength and vigour. Reiteratedly, hence, the trite factum displayed, in, Annexure A-5, and, in Annexure A-4 qua thereunder, rather the operation of the apt order of vestment of suit land, recorded on 20.04.2009, being stayed, does strip, and, erase, the strength of the reasoning, assigned by the learned first Appellate Court, (b) for, its, concluding that with Ex. D-5, acquiring conclusivity, hence, the sequel thereto, being, of, the apt alienees of the relevant sale deeds, not thereunder, acquiring any right, title or interest vis-a-vis the suit land. Consequently, this Court does think it befitting, to, accord the apposite leave to the appellant. 9. Be that as it may, the aforesaid annexures appended with the application, bearing CMP No.8758 of 2016, as, cast before this Court, under the provisions of Order 41, Rule 27 of the CPC, are judicial verdicts, (i) obviously hence no evidence in rebuttal thereto, is, enjoined to be adduced, nor hence any opportunity is enjoined, to be accorded, for adducing any apt rebuttal evidence thereto, (ii) rather they are per se admissible in evidence, even without theirs, in adherence with the apposite mandate, hence, being tendered, into evidence, besides being exhibited, (iii) thereupon, they are permitted to be taken on record, and, are also amenable, for, theirs being read, by this Court.
In other words, this Courts deems it fit, to read the aforesaid apposite verdicts, without, ordering, for the apt judicial verdicts, being, after remand of the lis vis-a-vis, the learned First Appellate Court, being permitted to be therebefore hence tendered and exhibited, thereupon, also hence, the aforesaid application is allowed, and, the apt judicial verdicts, are taken on record. 10. The effect of the hereinabove inference(s) and conclusion(s), (a) is that with the appropriate competent authority, after staying the operation, of, the order, of, vestment hence recorded on 20.4.2009, also being obviously hence seized with the apposite lis, squarely appertaining tot he necessity, of vestment, of the suit land, in, the State of Himachal Pradesh, given prior to the execution of the apposite sale deeds, purportedly no valid permission being granted, by the competent authority, to the alienees of the suit land, (b) thereupon, it has to be gauged qua whether this Court holding jurisdiction, to, proceed to pronounce, an adjudication, upon, the merits of the controversy, engaging, the parties at contest, (ii) controversy whereof, is squarely rested, upon, the suit land, for purported want of the apt alienees, prior to the execution, of the apposite sale deeds, seeking the statutory permission, rather hence warranting theirs being quashed and set aside, and, also concomitantly hence the suit land, thereupon, being ordered, to, be vested in the State of H.P. The aforesaid conundrum, can be easily settled, by alluding to the provisions, borne in Section 121-A of the H.P. Tenancy Land Reforms Act, wherein, a statutory bar, is, created against, the civil courts, exercising jurisdiction, vis-a-vis, any orders or proceedings, drawn under Chapter-11, especially by the narrated herein, statutorily contemplated authorities. Provisions of Section 121-A of the H.P. Tenancy and Land Reforms Act, read as under:- “121-A. Bar of Jurisdiction.- Save as otherwise expressly provided in this Chapter, the validity of any proceedings or orders taken or made under this Chapter shall not be called in question in any civil court or before any other authority.” 11.
Provisions of Section 121-A of the H.P. Tenancy and Land Reforms Act, read as under:- “121-A. Bar of Jurisdiction.- Save as otherwise expressly provided in this Chapter, the validity of any proceedings or orders taken or made under this Chapter shall not be called in question in any civil court or before any other authority.” 11. The aforestated, bar, created in the hereinabove extracted provisions, of, Section 121-A of the H.P. Tenancy and Land Reforms Act, is, unamenable to any dilution nor is amenable, to any other conclusion, than, of the statutorily contemplated authorities, who stand vested, with, the apt jurisdiction, to make conclusive orders, qua vestment, of, lands borne in the sale deeds, when evidently prior thereto, no apposite statutory permission, is, either sought nor is granted by the competent authorities, (i) and, who reiteratedly alone rather solitarily stand vested with the apposite jurisdiction, under, an explicit apt statutory mandate, for, hence, testing the validities, of, all the orders drawn under Chapter-11, (ii) thereupon, rather the apt remedy, vis-a-vis, the aggrieved, after, a, conclusive order, being recorded by the highest echelons, in the hierarchy, of, the statutorily contemplated authorities, being the one comprised in his through, a CWP, hence casting a challenge thereto. All the aforesaid substantial question of law are answered accordingly. 12. Dehors, this Court meteing, in, the aforesaid manner hence answers to the apt formulated substantial questions of law, nonetheless, the appellants would yet be de-facilitated to claim pronouncement, of, an affirmative decree, of permanent prohibitory injunction, (i) given the suit land, provenly, at this stage remaining unpartitioned and when hence the plaintiffs/appellants being co-owners in the undivided suit property, are, thereupon prohibited to claim rendition, of, a decree of permanent prohibitory injunction, vis-a-vis, the joint suit khasra number(s), whereon, they along with the defendant(s), are, co-owners, (ii) and, with a further corollary qua each co-owner, till dismemberment of the joint estate, being estopped to exclude other co-owners, from, enjoying the suit property, (iii) salient abovesaid principle rather suffering derogation, in case relief, of, injunction, is, granted. Moreover, in conjunction therewith, dehors meteings, of, hereinabove apt answers, to the substantial questions of law, also would not at all affect the efficacy of the apt concurrent findings recorded, by both the learned courts below, whereunder, each discountenance the appellants' propagation, of, the suit property being partitioned in the year 1936. 13.
Moreover, in conjunction therewith, dehors meteings, of, hereinabove apt answers, to the substantial questions of law, also would not at all affect the efficacy of the apt concurrent findings recorded, by both the learned courts below, whereunder, each discountenance the appellants' propagation, of, the suit property being partitioned in the year 1936. 13. The above discussion, unfolds, that all the conclusions, as arrived by the learned first Appellate Court as also by the learned trial Court, being based, upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court as well as the learned trial Court, have not excluded germane and apposite material from consideration. Substantial questions of law are answered accordingly. 14. Consequently, there is no merit in the instant appeal and it is dismissed accordingly. In sequel, the impugned judgments and decrees are maintained and affirmed. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs. Records be sent back forthwith.