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2000 DIGILAW 33 (HP)

RAJIV KUMAR v. BISHNA

2000-02-25

M.R.VERMA

body2000
JUDGMENT M. R. Verma, J.:- Feeling aggrieved, appellants-plaintiffs (hereinafter referred to as the plaintiffs) have preferred the present appeal under Section 100 CPC against the judgment and decree dated 2.6.1993 passed by the learned District Judge, Una whereby the judgment and decree dated 3.12.1988 passed by the learned Senior Sub Judge, Una, dismissing the suit of the plaintiffs, have been affirmed. 2. Brief facts leading to the presentation of the present appeal are as follows: 3. The plaintiffs instituted a suit against the respondents/defendants (hereinafter referred to as the defendants) for declaration that the land comprising khewat No. 147 khatauni Nos. 352 to 354 and 358/1, khasra Nos. 914, 846, 1157, 1155 and 936 min measuring 14 kanals 10 marlas situated in village Rensari, HB No. 192, Teh. & Distt. Una (hereinafter referred to as the suit land) is owned and possessed by them as donees vide gift deed dated 10.11.1975 executed by defendant No. 10 in favour and the defendants have no right or interest in the suit land nor they are in possession thereof any capacity whatsoever and the entries in the revenue papers showing them as Gair Marusis are false, fictitious, illegal and unwarranted and for the consequential relief of permanent injunction restraining defendants 1 to 9 from taking forcible possession of the suit land and in the event of their succeeding in taking forcible possession of the suit land during the pendency of the suit, for recovery of possession. Case of the plaintiffs, as made out in the plaint, is that they are owners in possession of the suit laid by virtue of a gift made in their favour by defendant No. 10 arid defendants 1 to 9 have no right or interest in the suit land. However, in connivance with the revenue staff and Parkash Chand, MLA, they got the false, fictitious and unauthorised entries of possession made in their names qua the suit land-without the knowledge of the owners. Encouraged by the fictitious entries in their names, defendants No. 1 to 9 started threatening to take forcible possession of the suit land and did not admit the rights of the plaintiffs despite requests. Hence the suit. 4. The defendants 1 to 9 contested the suit. Encouraged by the fictitious entries in their names, defendants No. 1 to 9 started threatening to take forcible possession of the suit land and did not admit the rights of the plaintiffs despite requests. Hence the suit. 4. The defendants 1 to 9 contested the suit. In their common written statement, they raised preliminary objections that the plaintiffs have no locus stand i to institute the suit and that the suit is bad for mis-joinder of parties and mis-joinder of causes of action. On merits, the claim as made out in the plaint, was denied as a whole and it was claimed that the defendants who were the tenants over the suit land under defendant No. 10, have become owners in possession of the suit land by virtue of coming into force of the H.P. Tenancy and Land Reforms Act. The gift, if any, (as pleaded for the plaintiffs) is illegal, fictitious, null and void and has no effect on the rights and title of the answering defendants. The defendants further claimed that they are in possession of the suit land. 5. Plaintiffs filed replication wherein the grounds of defence as taken in the written statement were denied and the claim as made out in the plaint was reinterated. 6. On the pleadings of the parties, the learned trial Judge framed the following issues :- 1. Whether the defendant No. 10 was owner in possession of the suit land? OPP. 2. Whether the suit land has been gifted in favour of the plaintiffs who are in possession as such? OPP. 3. In case Issue No. 2 is proved whether the gift is fictitious, illegal, null and void? OPD. 4. Whether the plaintiffs have no locus-standi to file this suit? OPD. 5. Whether the suit is bad for mis-joinder of parties, causes of action and multifariousness? OPD. 6. Relief. 7. Vide judgment dated 3.12.1988, the trial Court held issue Nos. 1 and 2 against the plaintiffs, issue Nos. 3 and 4 were held in favour of the defendants and issue No. 5 was decided against the defendants and as a consequence, the suit was dismissed. 8. Feeling aggrieved, the appellants preferred an appeal against the judgment and decree passed by the learned trial Judge. The appeal was heard and decided by the learned District Judge, Una who vide the impugned judgment dismissed the appeal. Hence the present appeal. 9. 8. Feeling aggrieved, the appellants preferred an appeal against the judgment and decree passed by the learned trial Judge. The appeal was heard and decided by the learned District Judge, Una who vide the impugned judgment dismissed the appeal. Hence the present appeal. 9. This appeal has been admitted for hearing on the following substantial questions of law: 1. Whether the unauthorised change made by the revenue official and such unauthorised entry has been carried forward in the jamabandis would carry the presumption of truth? 2. Whether the presumption of truth attached to the jamabandies qua the suit land except khasra Nos. 1155 and 1157 stands rebutted in view of the unauthorised change? 10. I have heard the learned Counsel for the parties and have gone through the records. 11. Since both these questions relate to the presumption of truth attached to the jamabandis, therefore, can be conveniently discussed and disposed of together. 12. It was contended by the learned Counsel for the plaintiffs that the entries in favour of defendants I to 9 as tenants of different portions of the suit land have bee. made without the knowledge of the plaintiffs/their predecessor-in-interest and particularly such entries qua khasra Nos. 936 and 846 are simply manipulated and unauthorised entries. To substantiate his contention, learned Counsel has drawn my attention to the copies of khasra girdawari Ex.P-6 and Ex.P-7. Vide Ex.P-6 khasra No. 846 is shown in the ownership and possession of Hans Raj, predecessors-in-interest of the plaintiffs. However, vide entry for kharif 1968, this khasra number is shown in the cultivation of Bishna, defendant No. 1 on payment of chakota @ Rs.20/- per annum. Vide Ex. P-7 land khasra No. 936 measuring 6 kanals 11 marlas as a whole is shown as owned and possessed by said Hans Raj but as per the entry about cultivation for the kharif crop of the year 1966, land measuring 2 kanals 6 marlas out of the land comprising khasra No. 936 is also shown in the cultivating possession of defendant No. 9 as gair marusi on payment chakota in the sum of Rs.18/-. The contention of the learned Counsel for the appellants is that these two entries bringing about the change about the possession and cultivation of land khasra No. 846 and part of land khasra No. 936 are unauthorised and without any basis. The contention of the learned Counsel for the appellants is that these two entries bringing about the change about the possession and cultivation of land khasra No. 846 and part of land khasra No. 936 are unauthorised and without any basis. Both the Courts below have believed these entries which have ultimately been reflected in the subsequent jamabandis by holding that presumption of truth was attached to the entries in the jamabandis and that the entires in favour of defendants 1 to 9 had continued for a long time, therefore, these cannot be held to be fictitious or incorrect. I do not find any substantial reason to differ with the concurrent conclusions arrived at by the Courts below. So far as land khasra Nos. 914,1155 and 3157 is concerned, it is - continuously shown in the possession of the predecessors-in-interest of the defendants right fro the years 1962-63 vide copy of misal hakiyat istemal Ex.P-5 and copies of jamabandis for the subsequent years, Exs.P-1 to P-4 and D-1 to D-7. The land khasra Nos. 846 and 936 aforesaid is shown in the cultivating possession of defendants 1, 9 and predecessors-in-interest of defendants 2 to 8 after the aforesaid entries, alleged to be fictitious, were made vide copies of jamabandis Exs.P-1, P-4, D-4, D-5, D-6 and D-7. It cannot be presumed that the plaintiffs or their predecessors-in-interest had no knowledge about the existence of these entries. In fact, defendant No. 10 who inherited the suit land from Hans Raj as his son amongst other land allegedly gifted the suit land to the plaintiffs by a gift deed, a photo copy where of is Ex.PW-2/A. This deed purports to have been executed on 10.11.1975. It is admitted by PW-1 Bhagat Ram, next friend of the plaintiffs and PW-2 Ganesh Chand, father of the plaintiffs that for executing the aforesaid gift deed he had obtained the copies of jamabandis of the land intended to be gifted and were attached with the gift-deed. However, it has been claimed by PW-1 Bhagat Ram that he is not aware about the entries in such copies of jamabandis but PW-2 Ganesh Chand has stated that in such copies of jamabandis, there was no entry in favour of the defendants. As stated earlier, the gift deed was executed on 10.11.1975, therefore, the material jamabandi at that time was the jamabandi for the year 1971-72. As stated earlier, the gift deed was executed on 10.11.1975, therefore, the material jamabandi at that time was the jamabandi for the year 1971-72. A copy of such jamabandi is Ex.D-5 on record in respect of the entire suit land which shows defendant No. 10 (Ganesh Chand), father of the plaintiffs, as owner in possession of the suit land and defendants 1 and 9 and predecessors-in-interest of other defendants as (sic) cultivating tenants of different fields of land in suit either on payment of chakor or share in the produce. Thus, at the time of preparing of the gift deed, these entires must have come to the knowledge of the executant-donor Ganesh Chand in the year 1975. However, he did not take any stop to get these entries corrected nor the donees took any step to correct these entries ti 1116.4.1984 when the present suit was instituted. Against this background, it cannot be believed that these entries were not within the knowledge of the plaintiffs or their predecessors-in-interest whereby they were prevented from getting these entires corrected at the material time. Thus, the Courts below have rightly held that presumption of truth is attached to the entires which are challenged by the plaintiffs in the suit. - There is no cogent and reliable rebuttal to rebut such presumption. 13. There is yet another aspect of the matter. It is evident from the marginal notes in the copies of jamabandis Exs.P-l to P-4 filed by the plaintiffs alongwith the plaint that vide mutation Nos. 1315, 1316, 1317 and 1466, the proprietary rights of the suit land stood conferred in favour of defendants 1 to 9. The case of the defendants 1 to 9 is that being tenants they have acquired these rights by virtue of the provisions of the H.P. Tenancy and Land Reforms Act (hereinafter referred to as the Act). It has been so stated by DW-1 Bishan Dass that earlier they were the tenants but had become owners. - Suggestions in this regard have also been put to PWs 1 and 2 who have, no doubt, denied such suggestions. It has been so stated by DW-1 Bishan Dass that earlier they were the tenants but had become owners. - Suggestions in this regard have also been put to PWs 1 and 2 who have, no doubt, denied such suggestions. It is clear from the marginal notes in the copy of jamabandi Ex.D-1 and can also be inferred from the marginal note in the copy of jamabandi Ex.D-6 that being tenants defendants 1 to 9 had been conferred the right, title and interest of the owners in the suit land over the respective area in their possession. Thus, by virtue of the provisions of Section 104 of the Act, defendants 1 to 9 are now owners in possession of the suit land to the extent of the respective portions thereof which were held by them as tenants. If the plaintiffs are aggrieved by such conferment, then the question of jurisdiction of the Civil court to entertain the suit is also involved. The intendment of the present suit, by necessary implication, is to set at naught the conferment of proprietary rights in favour of the defendants. This being the purpose, the plaintiffs have not shown that the Civil Court has jurisdiction to entertain the present suit which involves adjudication of the validity of conferment of the proprietary rights by the concerned authority on defendants 1 to 9. 14. When a non-occupancy tenant acquires proprietary rights in a parcel of tenancy, under section 104 of the act, the jurisdiction of the Civil Court to entertain a suit which will nullify such conferment is barred, except under certain circumstances, 15. A Full Bench of this Court in Chuniya Devi v. Jindu Ram, 1991(1)SLC 223 has held that civil Court has no jurisdiction to go into any question connected with the conferment of proprietary rights under Section 104 of the Act, 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. In the instant case, the plaintiffs had not pleaded nor proved that at the time of conferment of the proprietary rights, the concerned statutory authority had not acted in conformity with the fundamental principles of judicial procedure or the provisions of the Act had not been complied with. 16. In the instant case, the plaintiffs had not pleaded nor proved that at the time of conferment of the proprietary rights, the concerned statutory authority had not acted in conformity with the fundamental principles of judicial procedure or the provisions of the Act had not been complied with. Therefore, the suit which necessarily intends to nullify the conferment of the proprietary rights in the suit land in favour of defendants 1 to 9, could not be laid before the Civil Court for want of jurisdiction. On this score, alone, the I suit is bound to fail. 17. In view of the above discussion, there is no merit in this appeal which is accordingly dismissed. Parties, however are left to bear their own costs. Appeal dismissed.