Amar Singh vs Smt. Mahima Devi and Others

Deepak Gupta, J.—This Regular Second Appeal is directed against the judgment and decree of the learned District Judge, Sirmaur at Nahan whereby he dismissed the appeal filed by the present Appellant (hereinafter referred to as the Plaintiff) in limine and upheld the judgment and decree of the learned Trial Court.

The Plaintiff filed a suit claiming that he had purchased 5 bighas 11 biswas of land from Defendants No. 1 to 14 and/or their predecessor-in-interest. The claim of the Plaintiff is that along with this land, he purchased the entire share of Defendants No. 1 to 14/their predecessor-in-interest in the Shamlat land on 24.12.1966. The Plaintiff claimed that he was put in possession of about 40 bighas of land in December, 1966. In the year 1995, Defendant No. 15 started interfering over the suit land in the possession of the Plaintiff. On an enquiry, the Plaintiff came to know that the Defendants No. 1 to 3 had sold half of their share in the shamlat land to Defendant No. 15. He prayed that he be declared owner in possession of the suit land and Defendants No. 1 to 15 be restrained from interfering in the suit land. The suit of the Plaintiff was dismissed by the learned Trial Court. Appeal filed by him was dismissed in limine. Hence the regular second appeal.

The appeal was admitted on the following substantial questions of law:

Whether impugned judgment, decree is liable to be set aside as learned District Judge has not considered the material oral, documentary evidence on record in dismissing first appeal?

Whether the learned District Judge is not correct that there is no evidence on record that the suit land was ever sold or given in possession to the Plaintiff even though in Ex.P1 sale deed dated 24.12.1966 the vendors have specifically sold their share in the Shamlat to the Plaintiff etc. and the suit land was earlier part of Shamlat land.

Whether two Courts below misconstrued, misinterpreted sale deed Ex.P1 dated 24.12.1966 and sale deed Ex.P3 dated 7.6.1995 and other material on record in deciding that Plaintiff is not in possession of the suit land instead original Defendants No. 1 to 15 are owners in possession thereof?

The entire case hinges around the interpretation of the sale deed Ex.P1. There is no manner of doubt that the Plaintiff did purchase 5-11 bighas of land from the Defendants No. 1 to 14/their predecessor-in-interest and along with the land he also purchased their rights in the shamlat land, rights of easement along with the growth of shrubs and trees over the said land for a sum of Rs. 700/-.

Mr. Karan Singh Kanwar, learned Counsel for the Appellant contends that the Appellant had purchased the entire share of the Defendants in the shamlat land.

The undisputed facts are that the shamlat land which belongs to the entire village proprietory body had not been partitioned till the year 1971. Mutation in respect of the partition took place in the year 1981 and possessions were delivered. Share of Defendants No. 1 to 14 was determined at 40 bighas at all. In the revenue record, the Plaintiff was never shown in ownership or in possession of the shamlat land. The Plaintiff claims that he came to know about the fact that the revenue entries had not been recorded correctly only in the year 1995. Thereafter he filed the suit.

It is difficult to accept the version of the Plaintiff. Even if the sale deed is read as a whole, it is obvious that the rights in the shamlat land which had been transferred were the rights relating to 5-11 bighas of land and not the entire share of Defendants No. 1 to 14 or their predecessors-in-interest in the shamlat. It is also not disputed that the Plaintiff himself is a right holder in the village and in addition to the 5 bighas 11 biswas purchased from the Defendants he owns other land in the village. Therefore, a presumption can be raised that he knew about the partition proceedings of the shamlat land. He should have at that time objected and claimed that he had a particular right in the shamlat land.

The Defendant No. 15 had purchased the land in question for a valuable consideration. The Plaintiff did not care to get his name recorded in the revenue record and Defendant No. 15 who was a purchaser for bona fide consideration cannot suffer for the negligence of the Plaintiff.

Therefore, I find no merit in the appeal and the same is rejected. No order as to costs.