IMPORTANT POINT
Transfer by ostensible owner – Transferees has to take reasonable care in ascertaining that transferor had power to make transfer and that they had acted in good faith – This would require specific pleading and evidence by transferees.

JUDGMENT :

Vikram Nath, J.

Both the above appeals assail the correctness of the judgment and order dated 29.03.2017 passed by the High Court of Himachal Pradesh whereby the RSA No.392 of 2005 titled Vikram Singh and others Vs. Tota Ram (since deceased) through LRs was partly allowed and the judgment and decree passed by the First Appellate Court was partly upheld and partly set aside.

2. Relevant facts in brief giving rise to the present appeals are as under:

(a). Beli Ram was the owner in possession of the land in dispute. Tota Ram, plaintiff is the nephew of Beli Ram, being his brother's son. According to the plaintiff, he had been cultivating the land in question for more than three decades and had also been taking care of Beli Ram. In 1988, out of natural love and affection, Beli Ram executed a registered Will dated 12.12.1988 bequeathing the suit land in favour of the plaintiff Tota Ram. Beli Ram died on 11.07.1994. As the plaintiff had continued in possession from the time when Beli Ram was alive, he remained in possession even after death of Beli Ram. However, as the defendant started interfering with the possession of the suit land, the plaintiff made enquiry and he came to know that defendant no.1, Vikram Singh, on the basis of another Will dated 16.05.1994 had got his name mutated in the revenue records vide mutation Entry No.201. Further, Vikram Singh had transferred the land in suit in favour of defendant no.2, Smt. Saroj Kumari and also defendant nos.4 and 5, Pankaj Kumar and Pawan Kumar respectively.

(b) In view of the interference in possession, Tota Ram instituted a suit for a decree of declaration with consequential relief of permanent prohibitory injunction that he was the owner in possession of land in dispute and that the defendants had no right or title to it. It was further prayed that the mutation Entry No.201 dated 17.01.1996 and Entry No. 207 dated 07.06.1996 should also be declared as false, fictitious and illegal.

(c). In the plaint, Vikram Singh was impleaded as defendant no.1., Smt. Saroj Kumari as defendant no.2, Pankaj Kumar and Pawan Kumar as defendant Nos.4 and 5. Defendant no.3, Smt. Dharni Devi, being daughter of Beli Ram was also impleaded but no relief was claimed against her as she had not put up any claim with respect to the property of Beli Ram including the land in suit. According to the plaint allegations, Beli Ram had executed the Will in sound mind and good health, out of love and affection on 12.12.1988 in favour of the plaintiff, who had been taking care of Beli Ram throughout and had also been cultivating the land in suit for the last more than 30 years. It was further stated that the second Will dated 16.05.1994, set up by defendant no.1 was forged and fictitious and surrounded with suspicion, as such, it did not confer any right, title or interest upon the defendant no.1 or the vendees through him i.e. Defendant nos.2, 4 and 5.

(d). The defendants contested the suit and filed their written statements and led evidence. Defendant Nos.4 and 5 filed a separate written statement. They denied the plaint allegations and stated that the Will dated 16.05.1994 was a genuine document voluntarily executed by Beli Ram in a healthy and disposing mind and the same was duly registered. The Will dated 12.12.1988 was denied. According to them, the entries in the revenue records were made after due verification. They also claimed to be in possession of the land purchased by them. Separate written statements were filed by defendant nos.1 and 2 on same lines as of defendants 4 and 5. Dharni Devi, Defendant no.3, filed a written statement admitting the claim of the plaintiff and also the Will dated 12.12.1988.

4. The Trial Court framed 12 issues which read as follows:

"1. Whether the plaintiff is the owner in possession of the suit land as alleged?

2. Whether late Shri Beli Ram executed a valid "Will" on 12.12.1988 in favour of the plaintiff as alleged? OPP

3. Whether the mutations No.201 and 207 are wrong and