GAURI DUTT & ORS Vs. SEWAK RAM

JUDGEMENT

(1.) The plaintiffs/petitioners herein instituted, a suit for declaration, and, for permanent prohibitory injunction, and therein claimed rendition, of, a declaratory decree (a) of the revenue records vis-a-vis the suit land, as, prepared after 1975-76 being wrong, and, illegal, and, the sanctioning of mutation No. 475 of 24.03.1976 being also declared as null and void (b) besides claimed rendition of a decree vis-a-vis sale deed executed qua khasra No. 39, measuring 8-6 bighas and khasra No.45/40 min, measuring 19-19 bighas, total 28-5 bighas, being quashed, on the ground, that, the predecessorin-interest of the plaintiffs, one Hans Raj being immediately, on coming into force of Himachal Pradesh Tenancy and Land Reforms Act, 1972, rather standing entitled to automatic conferment of proprietary rights, thereupon, (c) accural of rights whereof ensued vis-a-vis him, given his, in the jamabandi(s) prior thereto, hence, standing recorded therein as gair maurusi, reiteratedly thereupon, the sale deeds, if any, executed vis-a-vis the aforesaid khasra numbers, being declared to be null, and, void, and, the apposite mutation in consonance therewith bearing No. 475 of 24.03.1976 , being also declared to be wrong, illegal, null and void.

(2.) The defendant, resisted, the suit of the plaintiff and claimed, that, under a relinquishment deed, the father of the defendant Shri Sada Nand, rather relinquishing in favour of the defendant/respondent herein, 1/6 share in the land bearing Khata/Khatauni No.1/1 to 1/9, total kitas 40 measuring 352-10 bighas, qua which mutation No.471 of 21.03.1966 stood attested. Since, the Assistant Collector 1st Grade, Kasauli, in case No.21A/9 of 2012, under, orders recorded on 27.08.2014, upon apposite motions made before him, by the concerned, hence ordered for dismemberment of the suit land, thereupon, the application, cast under the provisions of Order 39, Rules 1 and 2 of the CPC, instituted by the plaintiffs/petitioners herein, before, the learned trial, wherein, they claimed ad interim injunction, for restraining the defendant, from, causing any interference in, and, over the suit property, and, from making any type of interference, dispossessing the applicants/petitioners, or creating any charge or loan over the suit land, or changing the nature of the suit land, and, from alienating the suit land, and, initiating partition proceedings on the basis of wrong, and, illegal entries in favour of the respondent/defendant till the decision of the suit, rather hence entailing dismissal.

(3.) Both the learned Courts below had, upon, applying vis-a-vis the germane material(s) , hence, the trite triplicate tests, to be borne in mind, while deciding a application, cast under Order 39, Rules 1 and 2 of the CPC, tests whereof are comprised, in, (i) of a prima facie</i> case existing, (ii) and no irreparable loss or injury being caused to the plaintiffs in case relief is declined and (c) balance of convenience being loaded vis-a- the plaintiffs/applicants, rather hence rendered findings adversarial vis-a-vis the plaintiffs. The anchor of the aforesaid dis-affirmative findings concurrently, recorded by both the learned Courts below qua the material on record, hence not justifying the affording of relief to the plaintiff, stood rested upon, (i) the factum of one Hans Raj, during, his life time not challenging the apposite sale deed, and, rather after 41 years elapsing therefrom, his successors rearing a challenge thereupon, (ii) hence, the plaintiffs being nowat estopped, to cast any challenge qua the validity of the sale deed. (iii) in making the aforesaid conclusion, both, the learned courts below, apparently slighted, the impact of the apposite sale deed, being, registered on 27.01.1976, however, prior thereto, the H.P. Tenancy and Land Reforms Act, rather coming into force, with statutory contemplation(s) occurring therein, vis-a-vis automatic bestowment, of proprietary rights, upon, Hans Raj, the vendee of the apposite sale deed. Nowat, hence, for, making a befitting conclusion, that whether the predecessorin-interest of the plaintiffs, one Hans Raj, was, prior to coming into force of the Himachal Pradesh Tenancy and Land Reforms Act, hence, evidently recorded in the apposite jamabandis, to be gair maurusi, an allusion to the jamabandis, for the year 1951-52, 1955-56, 1958-59, 1963-64 and 1968-69, is imperative, (iv) allusion(s) thereto, denote, of reflections being held therewithin qua the predecessor-ininterest of the plaintiffs, being recorded, as gair maurusi visa-vis the suit khasra numbers. However, though the aforesaid reflection hence occurred, in jamabandis appertaining vis-a-vis the apposite reckonable period, especially the one immediately prior to coming into force of H.P. Tenancy and Land Reforms Act, whereupon, though hence Hans Raj stood prima facie</i> entitled vis-a-vis automatic statutory conferment of proprietary rights qua the suit khasra numbers, (v) yet no apposite order of mutation, whereby, proprietary rights stood sanctioned in his favour, came to be attested by the Revenue Officer concerned, (vi) contrarily in the year 1976, he executed a sale deed vis-a-vis the vendors constituted therein. The learned Courts below, on anvil, of principle of estoppel, arising from, the plaintiffs' making a belated challenge vis-a-vis the validity, of, sale deed executed inter se their predecessor vis-a-vis the vendors constituted in the apposite sale deed, rather concluded of thereupon, the plaintiffs being baulked to espouse their claim, and, rather hence declined relief to the plaintiffs, (vii) estoppel whereof reiteratedly stood concluded to arise, from, a procrastinated period of 41 years hence elapsing since the execution of the sale deed, besides reiteratedly with the predecessor-in-interest of the plaintiffs, during, his life time never claiming automatic vestment of statutory proprietary rights vis-a-vis the suit khasra numbers, and, thereupon they concluded that the triplicate aforesaid trite tests, remaining unsatiated, hence, declined relief to the plaintiff.