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2010 DIGILAW 897 (HP)

Khushi Ram v. Roshni Devi

2010-06-24

SURJIT SINGH

body2010
Surjit Singh, Judge (Oral). 1. This regular second appeal by defendants is directed against the judgment and decree dated 23.3.1999 of learned District Judge, whereby, dismissing their appeal, judgment and decree dated 23.11.1994 of learned trial Court, have been affirmed. 2. Respondent-plaintiff filed a suit for declaration that he was owner in possession of land measuring 255 square meters, bearing Khasra Nos. 325 and 327, situate in mauza Jassai, Tehsil Baroh, District, Kangra and that order of Assistant Collector 2nd Grade Baroh, dated 17.7.1984, Ex. D-5, correcting entry in Jamabandi, thereby showing appellant-defendant as owner in possession of the suit land, was wrong, illegal and without jurisdiction and not binding on his right and title. It was pleaded that initially, defendant –appellant was recorded as owner of the suit land, but in the column of possession, plaintiff was shown as tenant. It was stated that tenancy was created long back and ever since, plaintiff had been in possession. Further, it was stated that by virtue of Section 104 of the H.P. Tenancy and Land Reforms Act, 1972, respondent –plaintiff had become owner of the suit land on and with effect from the appointed day, i.e. 3.10.1975. 3. Suit was contested by the appellants-defendants, who pleaded that they had never created any tenancy in favour of the plaintiff and that possession was with them and they had made an application to the Assistant Collector 2nd Grade, Baroh, for correcting entry showing respondent-plaintiff in possession as tenant. 4. Trial Court, after framing issues and recording evidence, came to the conclusion that plaintiff was in possession and the order of Assistant Collector 2nd Grade, correcting entry in revenue papers, thereby deleting name of respondent-plaintiff and showing defendants-appellants as owners in possession, was illegal and without jurisdiction. Consequently, suit was decreed. Appeal was filed by the appellants-defendants in the Court of District Judge, which stands dismissed. 5. The present appeal was admitted on the following substantial questions of law: 1. Whether during settlement operations, Assistant Collector, 2nd Grade, had the jurisdiction to order the correction of the revenue entries? Could that order be held to be without jurisdiction by misapplying the provisions of H.P. Tenancy and Land Reforms Act? 2. Whether the suit of the plaintiff assailing the order of correction of revenue entries was barred by limitation? Were not the provisions of Article 100 of Limitation Act applicable? 3. Could that order be held to be without jurisdiction by misapplying the provisions of H.P. Tenancy and Land Reforms Act? 2. Whether the suit of the plaintiff assailing the order of correction of revenue entries was barred by limitation? Were not the provisions of Article 100 of Limitation Act applicable? 3. When the findings of the Trial Court were that the house standing on the suit land was constructed by the defendant and was found to be in possession of the plaintiff, could the courts below without deciding the status of the plaintiff decreed the suit particularly when the title of the defendant over the suit property was not disputed? 6. I have heard the counsel for the parties and 7. Order of Assistant Collector 2nd Grade, which is under challenge and is Ex.D-5, shows that plaintiff-respondent was proceeded ex parte. After passing order of ex parte proceedings, Assistant Collector passed the impugned order, without indicating in the order as to what material was available with him for coming to the conclusion that possession was with the appellants-defendants. On the contrary, Assistant Collector 2nd Grade had got the matter enquired into from Field Kanungo, who submitted report Ex.PW-1/A, per which, the plaintiff-respondent, was in possession of both the Khasra numbers. On one Khasra No., i.e. 325, plaintiff was found to have had his house and the other Khasra No. 327 was being used by the plaintiff-respondent as courtyard for the house, standing on Khasra No. 325. Not only this, Field Kanungo further reported that the appellants-defendants had demanded annual rent of Rs.150/- from the plaintiff, on account of his being in possession of the suit land. 8. Not only this, Field Kanungo further reported that the appellants-defendants had demanded annual rent of Rs.150/- from the plaintiff, on account of his being in possession of the suit land. 8. Now, when the plaintiff-respondent was in possession of the suit land and there were entries in revenue papers, continuing since 1967-68, Ex.P-3, showing the plaintiff in possession of the suit land, on payment of rent in kind, Assistant Collector 2nd Grade ought not to have entertained the application for correction of entries, in view of the provisions of Section 104 of the H.P. Tenancy and Land Reforms Act, 1972, which provides that on and with effect from the appointed day, i.e. 3.10.1975, a person recorded as non occupancy tenant, would become owner, unless land owner exercises right to resume the tenanted land, and sub section (4) of Section 104 of the aforesaid Act says that if any dispute arises as to whether a person is a tenant under a land owner or not, the onus of proof shall be on the land owner to prove that the person recorded as tenant, is not a tenant. Assistant Collector 2nd Grade ought not to have passed the impugned order, as he had no jurisdiction in the matter. Jurisdiction of even Civil Courts is barred to entertain or determine this kind of dispute, by virtue of Section 112 of the H.P. Tenancy and Land Reforms Act, 1972. Such a question, as per rule 29 of the H.P. Tenancy and Land Reforms Rules, 1975, is required to be determined only by the Land Reforms Officer, exercising powers of Assistant Collector Ist Grade. 9. In view of the above discussion, all the three substantial questions of law are answered against gone the appellants – defendants. Consequently, appeal is dismissed.