SANTOKH SINGH Vs. PAMESHWARI DEVI

JUDGEMENT

(1.) The present appeal is directed against the judgment and decree passed by learned District Judge, Solan, vide which the appeal filed by the appellants (plaintiffs before the learned Trial Court) was partly allowed and the judgment and decree passed by learned Sub Judge, First Class, Kasauli at Solan was modified. (Parties shall hereinafter be referred to in the same manner, as they were arrayed before the learned Trial Court for convenience).

(2.) Briefly stated, the facts giving rise to the present appeal are that the plaintiffs filed a civil suit before the learned Trial Court for seeking a declaration that they are owners in possession of 2 bighas 5 biswas of land bearing Khasra No.83/2, purchased through a sale deed registered on 23/6/1970, situated in Village Gumma, Pargana Daghat, Tehsil Kasauli (hereinafter referred to as the suit land). The creation of tenancy by defendant no. 1 in favour of defendant no.2 over the suit land, which did not belong to him and subsequent mutation no. 252 dtd. 14/7/1976 are void, illegal and of no consequence. A consequential relief of permanent prohibitory injunction for restraining defendant no.1 from alienating the land bearing Khasra No.83/2/2 measuring 1-4 bigha, raising any construction or changing its nature was also sought. A declaration that the sale deed executed by defendant no.1 or any other person on his behalf in favour of defendant no.3 as document no.138 dtd. 1/5/1992, registered with Sub-Registrar, Kasauli for consideration of ?50,000/- regarding Khasra No. 83/2/2 measuring 1-4 bigha and the consequent mutation No. 410 attested by Assistant Collector 2ndGrade, Kasauli on 22/5/1992 are null and void. It was pleaded that the plaintiffs purchased 2 bighas, 5 biswas of land out of Khasra No. 85 measuring 5 bighas, 18 biswas through a registered sale deed registered with Sub-Registrar, Kasauli on 23/6/1970. A mutation was entered but it was wrongly rejected by the revenue authorities on 15/2/1971. Two bighas, three biswas of land was acquired by the State of H.P. and mutation no. 246 dtd. 5/6/1976 was attested in favour of the State of H.P. Defendant no.1 is the owner in possession of 1 bigha, 10 biswas after the sale in favour of the plaintiffs and acquisition by the State. Defendant No.1 taking advantage of the non-attestation of the mutation in favour of the plaintiffs, created a fictitious tenancy in favour of defendant no.2. He was conferred proprietary rights over 2-11 bighas of land denoted by Khasra No. 83/2/1, vide mutation no. 252 dtd. 14/7/1976. Defendant No.1 was owner of 1-10 bighas of land and could not have created tenancy over 2- 11 bighas of land. Defendant No.1 threatened to alienate 1-4 bighas of land shown in his name. In fact, defendant no.1 alienated land measuring 1-4 bighas, bearing Khasra No. 83/2/2 to defendant no.3 through a registered sale deed No. 138 dtd. 1/5/1992. Mutation no. 410 dtd. 22/5/1992 was attested based on the sale deed. The sale deed is void and does not affect any rights of the plaintiffs; therefore, the suit was filed to seek the relief mentioned above.

(3.) The suit was opposed by defendant no.1 by filing a written statement taking preliminary objections regarding the plaintiffs having not come to the Court with clean hands, plaintiffs being estopped to file the present suit by their act and conduct, lack of maintainability & locus standi and the suit being barred by limitation. The contents of the plaint were denied on merits. It was asserted that the defendant never agreed to sell the land to the plaintiffs. He had good relations with the plaintiffs. The plaintiffs told the defendant that they intended to take a loan and raise funds from a financial institution to establish an industry. They asked the defendant to execute a sale deed in their favour and assured him not to claim any right, title or interest based on the sale deed. The defendant executed a sale deed on the assurance of close friends and relatives of the defendant. The possession was never handed over to the plaintiffs and defendant no. 1 continued to be the owner in possession of the suit land. The mutation was rightly rejected by the revenue authorities. The plaintiffs did not challenge the order rejecting the mutation. A part of the suit land stated to have been purchased by the plaintiffs was acquired by the State of H.P. Defendant No. 1 obtained the compensation for the acquired land. The plaintiffs did not raise any objection to the right of defendant no.1 as an owner in possession of the suit land. Defendant no.2 was inducted as a tenant and mutation was rightly sanctioned in his favour. Defendant No.1 is coming in open, peaceful, and continuous possession of the suit land to the knowledge of the plaintiffs and the public at large. Defendant No. 1 has become the owner by way of adverse possession. The plaintiffs had no locus standi to file the suit. Hence, it was prayed that the suit be dismissed.