STATE OF HIMACHAL PRADESH Vs. TAI RAM

JUDGEMENT

(1.) THIS Regular Second Appeal has been directed against the judgment and decree dated 15.10.1998 passed by the learned District Judge, Kinnaur Civil Division at Rampur Bushahar in civil appeal No. 6 of 1998.

(2.) BRIEF facts necessary for the adjudication of this Regular Second Appeal are that the respondent - plaintiff (hereinafter referred to as the plaintiff for convenience sake) filed a suit for declaration to the effect that he as well as other co -sharers are owners in possession of the land measuring 0 -25 - 25 hectares comprised in Khata No. 88, Khatauni No. 273 and Khasra No. 353 situated in Chak Gasoh, Tehsil Rampur, District Shimla as the same is no more redeemable. The case set up by the plaintiff is that the suit land earlier comprised in Khasra Nos. 61 and 62 measuring 3 -8 bighas shown in the jamabandi for the year 1973 -74 was recorded in the ownership of Devta Sahib of Gasoh and that the plaintiff and other co -sharers were recorded as the mortgagee and the plaintiff is shown in the cultivatory possession over the suit land and as per the entry made in the Missal Haquiat, the appellant -defendant (hereinafter referred to as 'the defendant ' for convenience sake) has been recorded owner of the suit land in place of Devta and rest of the entries remained as before. According to the plaintiff, the suit land was mortgaged with possession by the Devta for Rs. 19/ - in favour of Chagtu, Dharmu and Kala sons of Maju vide mutation No. 5515, which was attested on 14.3.2001 (Bikrami). The suit land is shown in possession of the mortgagee since the attestation of said mutation order. By virtue of family partition, the suit land fell in the share of the plaintiff and as such he is in possession of the same. After passing of the Big Landed Estate and Land Reforms Act, 1972, the suit land vested in the defendant -State. Sh. Kala son of Maju died leaving behind the plaintiff as his legal heir. The plaintiff made a representation to get the mutation attested in his favour and other mortgagees. Since the period of getting the land redeemed had lapsed, the land was not redeemed though it was mortgaged more than 50 years ago. He was informed by the Additional Deputy Commissioner, Shimla vide letter dated 25.6.1993 that though the mortgagees are in possession of the suit land for the last 48 years, rights could not be conferred upon the mortgagees and suggested that civil suit be filed for claiming the relief. The defendant contested the suit. It has been asserted that the suit land was mortgaged with Nanti, Mushu and Kesru sons of Mandru and subsequently on 15.3.2001 (Bikrami), said mortgagees further mortgaged the suit land to Changtru etc. vide mutation No. 5516. It was, inter alia, contended by the defendant that the Devta could not alienate the land by way of sale, gift, Will or mortgage and as such the mutation of mortgage was null and void. According to the defendant, the suit land vested in the State of Himachal Pradesh by virtue of the provisions contained in the Himachal Pradesh Ceiling on Land Holdings Act, 1972 as the suit land was declared surplus by Gopi Nand Negi, Mohatmim of Devta Sahib Kajal (Gasoh). It is further averred by the defendant that as per the inquiry conducted by the revenue field staff on the spot, the suit land was found in possession of Devta Sahib and not in the possession of the mortgagees at that time. The learned Sub -Judge 1st Class, Rampur Bushahar dismissed the suit on 17.11.1997. The plaintiff preferred an appeal before the learned District Judge, Kinnaur. The same was allowed by the learned District Judge on 15.10.1998. The judgment and decree passed by the learned trial Court was set aside. The suit of the plaintiff for declaration, as prayed for, was decreed with costs. This Regular Second Appeal was admitted on the following substantial questions of law:

(3.) MR . Romesh Verma, Advocate has supported the judgment and decree passed by the learned District Judge, Kinnaur.