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2011 DIGILAW 437 (HP)

Daulat Ram v. Braham Parkash

2011-02-21

RAJIV SHARMA

body2011
JUDGMENT Rajiv Sharma, This Regular Second Appeal is directed against the judgment and decree dated 24.08.2009, passed by the learned District Judge, Una, H.P. in Civil Appeal No. 17 of 2008. 2. Material facts necessary for adjudication of this Regular Second Appeal are that the respondents-plaintiffs (hereinafter referred to as “the plaintiffs” for convenience sake) had instituted a suit for declaration with consequential relief of permanent injunction against the appellant-defendant (hereinafter referred to as “the defendant” for convenience sake), on the allegations that they had been owners in possession of land described in Khewat No. 25, Khatauni No. 71, Khasra Nos.32, 33, 34, 61 and 65, measuring 0-54-64 hec., as per Jamabandi for the year, 1997-98, situated in revenue estate Mairi (Amb). According to them, the defendant was not inducted as tenant in possession of the suit land or otherwise at any No. stage. Out of the suit land measuring 0-54-64 hec., Khasra No. 61 alone measuring 0-05-76 hec. was put to cultivation, rest of the suit land was Banjar Kadim and Kharaitar and was unfit for cultivation. The plaintiffs were not bound by mutation No. 5 sanctioned in favour of the defendant on 21.02.1990. The defendant has started interfering with the possession of the plaintiffs of the suit land w.e.f. beginning of January, 2001. 3. The suit was contested by the defendant. According to him, he was inducted in possession of the suit land as non-occupancy tenant on payment of rent long back. He was in possession of the suit land. The revenue estate Mairi had been subject to settlement operations in the year 1987-88. At the time of settlement operations, the defendant had been notified of the entries of the books of the collector. The plaintiffs were being recorded in possession of the suit land, even though the defendant had been in possession. He had applied for corrections of the entries of the books of the collector and the Land Reforms Officer vide order dated 06.07.1988 had passed orders for recording the defendant in possession of the suit land as non-occupancy tenant. The defendant had been conferred with proprietary rights, under Section 104 of the H.P. Tenancy and Land Reforms Act, 1972.The plaintiffs had ceased to be the owners of the suit land. 4. The plaintiffs had filed replication and reiterated the grounds taken in the suit. The learned trial Court framed the issues on 21.01.2003. The defendant had been conferred with proprietary rights, under Section 104 of the H.P. Tenancy and Land Reforms Act, 1972.The plaintiffs had ceased to be the owners of the suit land. 4. The plaintiffs had filed replication and reiterated the grounds taken in the suit. The learned trial Court framed the issues on 21.01.2003. The trial Court decreed the suit on 08.02.2008. The plaintiffs were declared owner in possession of the suit land. The defendant was permanently restrained from interfering with the possession of the plaintiffs of the suit land by issuance of a decree of perpetual injunction. The defendant preferred an appeal before the learned District Judge, Una. He dismissed the same on 24.08.2009. This Regular Second Appeal has been preferred against the judgment and decree dated 24.08.2009. 5. Mr. R.P. Singh, learned counsel for the appellant has strenuously argued that the judgments and decrees passed by both the Courts below are against the principles of law. According to him, both the Courts below have mis-read and misconstrued the oral and documentary evidence. According to him, his client was inducted as tenant and the mutation No. 5 has been rightly attested in his favour on 21.02.1990. 6. Mr. Anuj Nag, learned counsel for the respondents has supported the judgments and decrees passed by both the Courts below. 7. I have heard the learned counsel for the parties and gone through the pleadings carefully. 8. Plaintiff-Brahm Prakash has appeared as PW-2. According to him, the plaintiffs and their predecessor-in-interest were owners in possession of the suit land. The defendant was never inducted as tenant in possession of the suit land. A major portion of the land was not fit for cultivation. According to him, only one Khasra number measuring 0-05-76 hec. was put to cultivation. The plaintiffs had produced the Jamabandis Ex. P-2, P-3 and P-4 for the years 1968-69, 1984-85 and 1987-88, respectively. In these Jamabandis, the plaintiffs and their predecessor-in-interest had been recorded as owners in possession of the suit land. 9. The defendant has appeared as DW-1. According to him, he was inducted as tenant of the suit land long back. He has not given the date, month and year, in which he was inducted as tenant by the plaintiffs. He had applied for correction of entries of the books of the collector on 02.06.1988. 9. The defendant has appeared as DW-1. According to him, he was inducted as tenant of the suit land long back. He has not given the date, month and year, in which he was inducted as tenant by the plaintiffs. He had applied for correction of entries of the books of the collector on 02.06.1988. According to him, his father and grand father were inducted as tenants in possession of the suit land. If that was so, there was no need for him to apply for the corrections in revenue entries. 10. DW-2 Hukamdin had deposed that the dimension of the suit land was 100 meters X 100 meters, whereas the defendant had stated that the dispute pertained to land measuring 30 meters X 60 meters only. The defendant had also admitted the correctness of the entries of the books of the collector pertaining to possession up to the settlement of 1987 88. Since the defendant had admitted the entries of the books of the collector up to 1987-88 in favour of the plaintiffs, there was no occasion for him to claim tenancy and possession of the suit land w.e.f. 1965-70. 11. The consolidation proceedings were initiated for revenue estate Mairi in 1984-85. The plaintiffs and their predecessor-in-interest were recorded as owners in possession of the suit land. The jamabandi and Misal Hakiat Ex.P-3 & Ex.P-4 were prepared at the time of consolidation and settlement operations. In case the defendant was in possession, as claimed by him, the entries were bound to be recorded by the consolidation and settlement staff in his favour. The order dated 02.06.1988 has rightly been discarded by the 1st Appellate Court. The order passed by the Land Reforms Officer is not a detailed order. The field Kanungo and Patwari had reported the possession of the plaintiffs over the suit land. In Jamabandi Misal Hakiat Ex.P-4, the plaintiffs have been recorded in possession. The Land Reforms Officer had not recorded the statements of the adjacent owners. The statement of DW-2 has been rightly discarded by the 1st Appellate Court since he had been litigating with the plaintiffs. Since the initial order dated 02.06.1988 was illegal, the mutation attested on the basis of the same bearing No. 5, Ex. P-6, dated 21.02.1990 was also bad in law. The statement of DW-2 has been rightly discarded by the 1st Appellate Court since he had been litigating with the plaintiffs. Since the initial order dated 02.06.1988 was illegal, the mutation attested on the basis of the same bearing No. 5, Ex. P-6, dated 21.02.1990 was also bad in law. The defendant had failed to prove by leading tangible evidence on record that he was inducted as tenant by the plaintiffs or their predecessor-in-interest. In view of the observations and discussions made hereinabove, the application filed under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure is rendered infructuous. 12. Accordingly, in view of the observations made hereinabove, there is no merit in this petition and the same is dismissed. No costs.