Ram Chand v. Jagat Ram — 1996 DIGILAW 114 (HP)

JUDGMENT A.L. Vaidya, J. 1. Shri Purnu, the predecessor of the present Appellants, filed a suit for permanent injunction against the Defendant-Respondents that Plaintiff was owner in possession of the suit land and the original Defendant Shri Bale Ram be restrained from interfering in the possession of the Plaintiff over the said land. The suit land was measuring 16 Biswas situated in Phati Jana Kothi Nagar, Tehsil and District Kullu. 2. The Defendant-Respondent contested the suit and it was pleaded that one Smt. Rattani was the tenant under the landlord Devta Jeev Narain, who was alleged to have relinquished her tenancy before her death in favour of said landlord and eversince, landlord was in occupation of the suit land through the Defendant who was the Kardar of the Devta. Parties were put to trial on the following issues: 1. Whether the Plaintiff is the owner in possession of the suit property as alleged? OPP 2. Whether the Defendant started interfering into the shit land as alleged? OPP 3. Relief. The trial Court decided both the issues in favour of the Plaintiff and the suit was decreed. It may be pointed out here that as referred above, the Defendant's simple plea had been that Devta was the owner and one Smt. Rattani was the tenant who had relinquished her rights in favour of the Devta,-the owner and the Defendant being the Manager of the Devta, was in occupation of the suit land on behalf of the Devta. 3. To this plea of the Defendant, no replication was filed. However on the basis of evidence examined by the parties and the arguments addressed in support of their respective case, Plaintiff's simple case appears to have been that he was the tenant in occupation of the suit land under the owner and he had been granted proprietary rights under Section 104 of the H.P. Tenancy and Land Reforms Act (hereinafter to be called as "the Act") in the year 1982 and since then, he had become owner in possession of the suit land. The trial Court held the Plaintiff to be the tenant of the suit land and also held that proprietary rights had been granted in his favour validly under Section 104 of the Act. 4. The trial Court held the Plaintiff to be the tenant of the suit land and also held that proprietary rights had been granted in his favour validly under Section 104 of the Act. 4. The aforesaid judgment and decree were assailed on various pleas before the first appellate Court who, after hearing the parties, accepted the appeal and set aside the judgment and decree passed by the trial Court. The first appellate Court held that Purnu, the original Plaintiff, was not in occupation as tenant of the suit land and proprietary rights could not be granted in his favour. 5. The aforesaid judgment and decree have been assailed in the present regular second appeal on various grounds. 6. Learned Counsel for the parties have been heard and I have minutely scrutinised the entire record. 7. The main point to be disposed of in the present litigation pertains to the alleged tenancy rights claimed by the predecessor of the present Appellants who had filed the suit. As pointed out above, so far as the pleadings are concerned, the Plaintiff has nowhere pleaded in the plaint that he was tenant in occupation of the suit land and on the basis of the same, he was granted proprietary rights. His simple case had been that he was owner in possession of the suit land. No replication was filed by the Plaintiff whereby he could plead the alleged tenancy rights on the basis of which he was granted proprietary rights. Any way, the parties have adduced evidence in this particular aspect of the matter and which aspect has been taken note of by the first appellate Court who also gave findings regarding the alleged tenancy rights of the Plaintiff. Parties have brought on record some revenue entries. Ex. P-1 is the copy of jamabandi pertaining to the suit land for the year 1973-74. In this copy, Devta Jeev Narayan has been recorded to be the owner of the suit land through Manager Bale Ram Defendant. In the column of occupation, Smt. Rattani has been recorded in occupation through Purnu. The status of Smt. Rattani recorded in the column of occupation is "Tave Marji Aval" and that of Purnu has been recorded as "Tave Marji Dom". In the rent column, Smt. Rattani is recorded to be paying 50 paise annually, while Purnu is recorded to be rendering some services in favour of Smt Rattani. 8. The status of Smt. Rattani recorded in the column of occupation is "Tave Marji Aval" and that of Purnu has been recorded as "Tave Marji Dom". In the rent column, Smt. Rattani is recorded to be paying 50 paise annually, while Purnu is recorded to be rendering some services in favour of Smt Rattani. 8. Ex. P-2 is the copy of mutation No. 2060 sanctioned on 18-10-1982 in favour of Purnu, granting proprietary rights in his favour under Section 104 of the Act. In the order itself, the parties presence has not been recorded and the mutation has been sanctioned on the basis of some notification issued in October 1975. 9. Ex. DA is the copy of khasra girdawari from 30-10-1979 to 27-10-1983, wherein uptil Kharif 1979, in the column of occupation, Smt. Rattani through Purnu has been recorded in actual occupation but after Kharif 1979, the owner through Kardar has been recorded in actual occupation of the suit land. 10. Plaintiff's case, as argued before this Court, has been that on the basis of the entries in the record of rights, to which legal presumption of truth was attached, he was recorded as sub-tenant in actual occupation of the suit land and, therefore, the proprietary rights granted in his favour in the year 1982, were validly granted under the provisions of the Act and the Civil Court in this background, will have no jurisdiction to decide his status of being tenant over the suit land, on the basis of which he was granted proprietary rights. It has also been contended that tenant included subtenant, under the definition of tenant under the Act, therefore, the Plaintiff was granted proprietory rights in accordance with the provisions of the Act. 11. It is not so simple a matter as has been contended on behalf of the Plaintiff. The submissions being put forth, as referred to above, have to be ignored on the basis of various circumstances present in this case. 12. As pointed out earlier, there is no specific pleading averred by the Plaintiff with respect to his claim of tenancy rights. In the absence of the pleadings of the Plaintiff, the statement made by him on oath can safely be taken note of. The Plaintiff appeared as his own witness before the trial Court. He was examined as PW 1. As pointed out earlier, there is no specific pleading averred by the Plaintiff with respect to his claim of tenancy rights. In the absence of the pleadings of the Plaintiff, the statement made by him on oath can safely be taken note of. The Plaintiff appeared as his own witness before the trial Court. He was examined as PW 1. Ho deposed on oath that he was owner in occupation of the suit land. He further added that this land was earlier owned by Devta Jeev Narain and he was the tenant under the land owner. He further added that he has been paying eight annas every year as tenant to Devta. According to Plaintiff, no receipt was issued to him. He further stated that the land was given to him on rent as a tenant by the Kardar of the temple and Smt Rattani, but no writing was executed. At this stage, it may be pointed out very specifically that the Plaintiff nowhere stated even a single word that he was occupying the suit land, as a sub tenant under Smt. Rattani. His simple case has been that he was inducted directly tenant under the land owner by the Kardar and Smt. Rattani who was recorded as tenant of the suit land. So. Plaintiff's assertion that on the basis of the entry in the record of rights which is Ex. P-1 on record, he has been proved to be sub tenant of the suit land, cannot hold good. This entry will' not at all be helpful to the case of the Plaintiff, who is claiming to have been inducted as a direct tenant under the land owner. This Ex. P-1 did not depict that status claimed by the Plaintiff, when he made the statement on oath. 13. Needless to say, tenancy is the creature of an agreement, which has not only to be proved, but pleaded also. In the present case, in the absence of the pleadings, the evidence examined by the patties, has to be taken note of, especially when parties have examined evidence in support and against the alleged tenancy right claimed by the Plaintiff and that evidence, as such, in variance to the pleadings, cannot be brushed aside. 14. In the present case, in the absence of the pleadings, the evidence examined by the patties, has to be taken note of, especially when parties have examined evidence in support and against the alleged tenancy right claimed by the Plaintiff and that evidence, as such, in variance to the pleadings, cannot be brushed aside. 14. At first instance, it has to be looked into whether the Plaintiff through legally competent evidence, has proved himself to be the tenant inducted by the land owner on the suit land. In this behalf, the evidence examined by the Plaintiff nowhere established the said agreement of tenancy as stated by him on oath before the trial Court. He stated that he was inducted as tenant in the suit land by the Kardar of Devta, the owner and by Rattani Devi. He also simply stated that he was to pay eight annas or 50 paise as annual rent. Apart from his bald statement, there is practically no legal evidence to prove this agreement. The other witnesses examined, also made a general statement that Plaintiff was paying eight annas every month to the Devta as sent. This is so stated by PW 2 Hari Dass, PW 3 Uttam Ram Both these witnesses nowhere stated that the said rent was paid by the Plaintiff to the Devta or Devta's Manager in their presence. Thus, the original agreement of tenanoy, as stated by the Plaintiff, has not been legally proved at all and otherwise also, the factum of payment of annual rent as claimed by the Plaintiff also, did not stand legally established. Moreover, the alleged tenancy rights claimed by the Plaintiff directly under the landlord, again were not reflected from the entries in the record of rights or other revenue entries. Apart from the said evidence examined by the Plaintiff, which will not help his case, the Defendant has examined witnesses supporting his case. Those witnesses nowhere otherwise proved Plaintiff's claim of tenancy. In this view of the matter, in so far as the present suit was concerned, the Plaintiff has been unsuccessful in establishing himself to be in actual occupation as tenant of the suit land at the time of grant of the proprietary rights in his favour under Section 104 of the Act. 15. In this view of the matter, in so far as the present suit was concerned, the Plaintiff has been unsuccessful in establishing himself to be in actual occupation as tenant of the suit land at the time of grant of the proprietary rights in his favour under Section 104 of the Act. 15. Learned Counsel for the Appellant has tried to take some benefit from Chuhniya Devi v. Jindu Rami's case reported in 1991 (I) Shim LC 223. In this reported case a reference was made to the Full Bench of this Court for an answer to the question whether the Civil-Court has jurisdiction in respect of an order: (a) made by the competent authority under the H.P. Land Revenue Act, 1954, and (b) of conferment of proprietary rights under Section 104 of the H.P. Tenancy and Land Reforms Act, 1972. So far as the present case is concerned, the later part of the reference is relevant. In the aforesaid case, the Full Court answered the reference as under: (a) that an order made by the competent authority under the H.P. Land Revenue Act, 1954 is open to challenge before a Civil Court to the extent that it relates to matters falling within the ambit of Section 37(3) and Section 46 of that Act; and (b) the Civil Court has no jurisdiction to go into any question connected with the conferment of proprietary rights under Section 104 of the H.P. Tenancy and Land Reforms Act, 1972, except in a case where it is found that the statutory authorities, envisaged by that Act had not acted in conformity with the fundamental principles of judicial procedure or where the provisions of the Act had not been complied with. 16. On the basis of the facts present in this case, the ratio of Chuhniya Devi's case (supra), will not at all be available to the Plaintiff. 17. At the time of sanction of the mutation as is revealed from Ex. P-2, nobody on behalf of Devta, the owner was present before the learned revenue officer. It may not be out of place to mention here that Devta Jeev Narayan is a perpetual minor and to safeguard the interest of the minor, is the bounden duty of every presiding officer including a revenue officer. Apart from this, even the record of rights Ex. It may not be out of place to mention here that Devta Jeev Narayan is a perpetual minor and to safeguard the interest of the minor, is the bounden duty of every presiding officer including a revenue officer. Apart from this, even the record of rights Ex. P-1, the copy of jamabandi for the year 1973-74 nowhere depicted the deceased Plaintiff Purnu to be the tenant in occupation directly under the land owner. No doubt, he was recorded as sub-tenant as discussed earlier, but that is not the case of the Plaintiff put up in the present proceedings. It has come on record, as pointed out above, that after Kharif 1979 in the khasra girdawari, Devta, the owner has been recorded to be in actual occupation of the suit land. It is really very strange to note that the revenue officer who sanctioned the mutation granting proprietary rights in favour of the deceased Plaintiff, failed to appreciate those entries which were admittedly in favour of the Devta at the time of sanction of the mutation. 18. It is an admitted proposition of law that mutation proceedings, behind the back of the parties, cannot be legally proceeded with, which has been so done in the present case. In Chuhniya Devi's case (supra), it has been very specifically held that Civil Court shall have no jurisdiction except in a case where it was found that the statutory authorities, envisaged by that Act had not acted in conformity with the fundamental principles of judicial procedure or where the provisions of the Act had not been complied with. The concerned authority, sanctioning the mutation, has not only violated the principles of judicial procedure, but also violated the provisions of the Act by non-compliance. Rule 29 of the H.P. Tenancy and Land Reforms Rules (hereinafter to be called as "the Rules"), for the sake of convenience, is being reproduced hereunder: 29. Determination of disputes under Sub-section (4) of Section 104.- If there is a dispute regarding the entries of the land records the Land Reforms Officer, in his capacity as an Assistant Collector of the First Grade, shall decide the dispute under Sub-section (4) of Section 104 in accordance with the relevant provision of the Punjab Land Revenue Act, 1887 (17 of 1887) or the H.P. Land Revenue Act, 1954 (6 of 1954) as the case may be. The disputes of such cases will be determined on a summary inquiry on the files. Where a tenancy is in a part of a field, No Tatima Shajras of that part will be prepared. 19. In the present case, the Land Reforms Officer sanctioned the mutation granting proprietary rights in favour of the alleged tenant behind the back of the parties and that too on the basis of entries existing prior to the enforcement of the Act Admittedly, the revenue entries at the time of sanctioning of the mutation were not in favour of alleged tenant, but owner Devta had been recorded in actual occupation of the suit land. In this background, it was essential for the officer concerned to have inquired into the alleged claim of the tenant, being cultivating tenant under the Devta of the suit land Without effecting any inquiry as envisaged under the Act and the Rules, the officer concerned sanctioned the proprietary rights which act in itself is going beyond the provisions of the Act and the Rules framed thereunder and in this view of the matter, the ratio of Chuhniya Devi's case (supra), cannot be helpful to the case of the Appellants. It has been contended on behalf of the Appellant that the substitution of the entries after Kharif 1979 in favour of the owner-Devta, was illegal and without authority and, as such, those have to be ignored. Even if those entries were to be ignored, the revenue officer bad to make an inquiry before granting proprietary rights under Section 104 of the Act regarding the alleged tenancy rights claimed by the Plaintiff, which were not reflected in his favour in the revenue record at the time of sanction of the mutation. The procedure adopted by the revenue officer was not only alien to the provisions of the Act and Rules, but against the principles of natural justice. This mutation order, as such, will not carry any legal weight whatsoever, being the result of an order passed by revenue officer ignoring the provisions of the Act and the Rules in this behalf and such an order, being without jurisdiction, will not create any right in favour of the Plaintiff, especially when mutation, in itself, does no create any title. 20. 20. Last but not the least, it has been contended that the Defendant or the Devta had not taken any steps whatsoever for setting aside the mutation order passed in favour of the deceased-Plaintiff and, therefore, the plea being raised at this stage, would not be available to them. This submission has simply to be rejected, inasmuch as, as referred above, the owner has been recorded in actual occupation of the suit land after Kharif 1979 and according to owner, he was still occupying the said land and in this background, there was absolutely no necessity to have taken those steps, especially when at the spot the right of the owner was not being threatened. At this stage, Plaintiff's statement can be referred wherein he has very specifically stated that at present the suit land was vacant. 21. Thus, on the basis of the circumstances discussed hereinabove, the judgment and decree passed by the first appellate Court, do not require any interference, though the first appellate Court came to that conclusion on different grounds. The present appeal, as such, fails and being devoid of any merit, is accordingly dismissed. Parties are left to bear their own costs.