AKSHARA NAND Vs. STATE OF H.P.

JUDGEMENT

(1.) This is regular second appeal under Sec. 100(old) of the Civil Procedure Code against the decree and judgment dated 16.6.1984 passed by the District Judge, Solan and Sirmaur Districts at Solan whereby the decree and judgment dated 27.9.1978 of Sub Judge Ist Class, Kandaghat were affirmed. The Sub Judge had partly decreed the suit of the appellants-plaintiffs in respect of land measuring 6 Bighas 3 Biswas comprised in Khasra No. 380, 407, 408, 475, 515, 535 and 542 situated in village Basha Pargana Bagri Kalan, Tehsil Kandaghat, District Solan, declaring them owners in possession thereof, holding that period of redemption for the said land had expired. Decree for permanent prohibitory injunction was also passed against the respondents-defendants restraining them from interfering with the possession of the appellants-plaintiffs over the said land. But their suit for another parcel of land measuring 29 Bighas 4 Biswas comprised in Khasra Nos. 345, 362, 363, 375, 368, 376, 692 and 693 situated in village Basha Pargana Bagri Kalan. Tehsil Kandaghat, District Solan (hereinafter called the land in question) was rejected holding that the said land stood redeemed on 9.8.1954 by Mutation No. 98 (Ext. DA). Since no appeal was filed by the respondents-defendants in respect of first parcel of land, decree in favour of the appellants-plaintiffs has become final. Hence, in this appeal this Court is concerned with the second parcel of land measuring 29 Bighas 4 Biswas in respect of which decree prayed for was refused to the appellants-plaintiffs by both the courts below.

(2.) The case set up by the appellants-plaintiffs was that the land in question was owned by Shri Chanchlo son of Shri Barfo and after his death his wife Smt. Gangi inherited it and mortgaged it with predecessor-in-interest of appellants-plaintiffs on 10 Baisakh, 1990 Bk. vide Mutation No. 296 (Ext.PB). Since she died issue less, the land in question stood escheated to the then State of Pepsu, which had later become part of the State of Himachal Pradesh. According to appellants-plaintiffs the respondents-defendants failed to get the land in question redeemed within the period of limitation of 30 years, hence, they sought decree for declaration that they are owners in possession. They also prayed for consequential relief of permanent prohibitory injunction restraining the respondents-defendants from interfering with their possession as they were apprehending their dispossession from the land in question. However, both the courts below have concurrently found that the land in question stood redeemed on 9.8.1954 by Mutation Ext. DA. For coming to this conclusion the courts below have also relied upon other document Ext. PDA which is joint statement of appellants-plaintiffs 3 and 4 Asha Ram and Nek Ram alleged to have been made by them before Tehsildar on 19.7.1966 that on receipt of the mortgage money, which stood deposited by the respondents- defendants in the treasury, they will hand over the possession of the land in question. The other oral and documentary evidence of revenue records were also interpreted in favour of the respondents-defendants to reject the claim of the appellants-plaintiffs.

(3.) This Court has heard learned counsel for the parties and gone through the record. Shri Bhupender Gupta, learned counsel appearing for the appellants- plaintiffs, has urged that in the present case the concurrent findings of fact that the land in question stood redeemed deserve to be interfered with on the ground that the courts below have adopted out only wrong approach but have relied upon inadmissible documents which is the material evidence relied upon by them for arriving at their conclusions. He has pointed out that so far the statement Ext. PDA is concerned, it was only tendered in evidence by the learned counsel for respondents-defendants and not produced and proved in accordance with law. It is an attested copy and not a certified copy issued by the Copying Agency. It was produced by way of secondary evidence but necessary pre-requisites as provided under Sec. 65 of the Indian Evidence Act (hereinafter called the Act) have not been complied with.