HIGH COURT OF HIMACHAL PRADESH
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(1.) THIS is a second appeal by the plaintiffs Kanshi Ram and others against the judgment and decree of the learned District Judge of Mandi, dated 29 4 1952, reversing the decree of the Subordinate Judge (whereby it was declared that the plaintiffs were the owners of a cultivatory holding) and dismissing their suit.
(2.) THE land in suit, measuring 21 bighas 17 biswas and 4 biswansis of cultivatory and 3 bighas 17 biswas and 10 biswansis of pasture land, situate in village Mundak Gahri Tehsil Sarkaghat, originally belonged to one Gaddi, and he sold it in 1971 B. to Devi Ram, late father of the defendant respondent Lajju Ram, for a sum of Rs. 425/ . The plaintiffs are heirs of three brothers Naurangu, Lohku and Damru, and one of the allegations made by them in the present suit was that the transaction of sale was a benami one, the real purchasers having been the said three brothers. This allegation was traversed by the defendant in the trial Court, but the finding of that Court on this point was in favour of the plaintiffs, and that finding has not since been challenged by the defendant. It is also common ground that the land in suit has since the sale been in possession of the plaintiffs' predecessors and after them of the plaintiffs themselves. On the defendant getting a notice of ejectment served upon the plaintiffs on 19 8 1949, the latter filed the suit giving rise to the present appeal on 2 3 1950 for a declaration that they were the owners of the land in suit.
The trial Court decreed the suit, but on the defendant appealing from that decision the learned District Judge of Mandi dismissed, the suit, as aforesaid. The plaintiffs founded their suit on three grounds in the alternative: that they were the real owners of the land in suit and the defendant was only the be namidar, that they had acquired title to the property by adverse possession and that the defendant had agreed to transfer the land in suit to the plaintiffs. The lower appellate Court arrived at findings against the plaintiffs on all these points. The plaintiffs would be entitled to a decree if they succeed in establishing any of the said three grounds. In my opinion, this suit should be decreed on the first ground, and therefore I propose to take up only that ground.
(3.) AS adverted to above, it was conceded on behalf of the defendant in the lower appellate Court that the sale was a benami transaction, the real purchasers having been the plaintiffs' predecessors. The lower appellate Court however refused to give effect to the sale in favour of the plaintiffs as heirs of the real purchasers because it was of the opinion that the transaction was void under Section 3 of the Mandi Transfer of Immoveable Property Regulation No. II of Sambat 1975. If this finding of the lower appellate Court be correct, there is no doubt that the said pre decessors of the plaintiffs did not acquire any right, title or interest in the land in suit and therefore the plaintiffs would not be entitled to any relief on the first ground. Section 3 of the said Regulation runs as follows :
"(1) No land may be alienated temporarily or permanently by sale, mortgage, gift or exchange, nor may any tenancy by way of lease be created for a period exceeding five years, without the previous sanction of the Durbar. Provided that the sanction of the Durbar is not required for transfers of land due to direct inheritance, partition, redemption of mortgage or corrections in the Revenue Record. (2) Every alienation of land made and every tenancy created contrary to the above sub section without the sanction of the Durbar is null and void and shall not be given effect to by any Court or Revenue Officer." ;
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