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2011 DIGILAW 471 (HP)

Roshan Lal v. Melo Devi

2011-02-21

SURINDER SINGH

body2011
JUDGMENT Surinder Singh, J. The present Regular Second Appeal was admitted on 31.5.1996 on the following substantial questions of law:- “1. Whether the first Appellate Court below mis-appreciated the provision of law applicable, pleadings of the parties and evidence adduced by them, thereby vitiating the impugned judgment and decree? 2. Whether the defendants have been able to prove the factum of tenancy in their favour in the facts and circumstances of the case in hand? 3. Whether the approach of the learned First Appellate Court below in dismissing the suit of the plaintiffs after holding that the civil court has got no jurisdiction is sustainable in the eyes of law? 4. Whether the documents exhibit D-1 to D-6 have been mis-appreciated by the first Appellate court below thereby vitiating the impugned judgment and decree?” 2. Plaintiffs are in appeal against the judgment and decree passed by the learned first Appellate Court in Civil Appeal No. 28 of 1992 decided on 11.3.1996 whereby the judgment and decree passed by the learned Sub Judge (II), Amb dated 29.1.1992 was reversed and suit of the plaintiffs was dismissed. 3. Appellants hereinafter referred to as “the plaintiffs” had filed a suit qua suit land seeking declaration and permanent prohibitory injunction and in the alternative for possession against the respondents now referred to as “the defendants”. 4. The contentions of the plaintiffs in the suit have been that the suit khasra No. 354 (old khasra No. 357) measuring 4 kanals 7 marlas was owned and possessed by the plaintiffs but the defendants and their predecessor-in-interest were wrongly shown as the tenant thereof. It is alleged that the entries of the tenancy were procured by the defendants at the back of the plaintiffs and got sanctioned the mutation qua the proprietary rights without adopting recourse to law. Further the suit khasra was wrongly got allotted in their favour by the defendants in connivance with the Consolidation staff which was not only wrong but also illegal. Thus prayed for relief, as aforesaid. 5. Defendants offered strong resistance to the suit. They claimed that they have been the non-occupancy tenants since the time of the predecessor-in-interest of the plaintiffs and supported the mutation conferring proprietary rights in their favour which was never challenged by the plaintiffs by filing an appeal as provided under the relevant law in this behalf. 5. Defendants offered strong resistance to the suit. They claimed that they have been the non-occupancy tenants since the time of the predecessor-in-interest of the plaintiffs and supported the mutation conferring proprietary rights in their favour which was never challenged by the plaintiffs by filing an appeal as provided under the relevant law in this behalf. Thus, raised the point of estoppel and maintainability of the suit. Further, they also supported the allotment of the land as per the consolidation proceedings and in the alternative pleaded that if they are not proved to be as tenants, in that event, they have adversely acquired the suit khasra. 6. On the pleadings of the parties, learned trial Court framed the following issues:- (i) Whether the plaintiffs are owners in possession of the suit land, as alleged? OPP (ii) Whether the entries in favour of the defendants are false and wrong, as alleged? OPP (iii) Whether the suit is barred under Section 57 of the H.P. Consolidation and Holdings Act? OPD (iv) Whether the plaintiffs are estopped by their acts and conduct? OPD (v) Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD (vi) Whether the suit is bad for multifariousness as alleged? OPD (vii) Whether the suit is within time? OPP (viii) Relief. 7. The learned trial Court, at the end of the trial, held that the plaintiffs are owners but not in possession of the suit land thus decreed the suit for possession, dismissing the claim of defendants’ tenancy and also the plea in alternative. 8. The impugned judgment and decree were challenged by the defendants in appeal before the learned District Judge on the ground that there were long standing revenue entries of tenancy in their favour and the conferment of the proprietary rights was in accordance with law and with fundamental principles of judicial procedure. As such in view of the judgment passed by the full Bench of this Court in Chuhniya Devi vs. Jindu Ram 1991 (1) SLC 223 the Civil Court had no jurisdiction to go into the question connected with the conferment of the proprietary rights. Further Section 57 of the H.P. Consolidation and Holdings Act in regard to partition and repartition of the land under the Act also bars the jurisdiction of the Civil Court. 9. Further Section 57 of the H.P. Consolidation and Holdings Act in regard to partition and repartition of the land under the Act also bars the jurisdiction of the Civil Court. 9. On the points aforesaid, while agreeing with the contentions raised by the defendants in appeal, learned first appellate Court allowed the appeal. Consequently, the judgment and decree passed by the learned trial Court were set aside and the suit of the plaintiffs was dismissed. Hence the present appeal. 10. Shri Ajay Sharma, learned counsel for the appellant forcefully argued that the mutation with respect to the conferment of the proprietary rights was accepted and attested in the absence of the plaintiffs and further that the land in question was recorded as Banjar Kadim. It was further contended that mere exhibiting the jamabandies would not prove the tenancy of the defendants, therefore, there was breach of the fundamental procedure and civil court had jurisdiction to try and determine the suit and the findings of the learned trial Court were legally and factually correct. 11. Contra, Shri N.K. Thakur, learned counsel for the defendants submitted that the revenue record placed on record by the plaintiffs which was exhibited, itself reflect the entries of tenancy in favour of the defendants and there were also the old entries under the predecessor-in-interest of the defendants in the record of rights which were tendered in evidence and duly exhibited without objection contained the entries in favour of the defendants supplementing the subsequent entries. The documents aforesaid are public documents and relevant having been prepared by the public servant in discharge of his official duties. Therefore, at this belated stage, plaintiffs cannot raise any objection to this effect while supporting the impugned judgment and decree passed by the learned first Appellate court, prayed for dismissal of the suit as no substantial question of law has arisen nor there has been any misinterpretation or mis-appreciation of the evidence by the learned first appellate Court. 12. I have given my thoughtful consideration to the rival contention of the parties and have gainfully went through the record. 13. 12. I have given my thoughtful consideration to the rival contention of the parties and have gainfully went through the record. 13. At the very outset I would like to say that the jamabandies which were tendered in evidence by the defendants without any objection raised by the plaintiffs at that time, would not be open to challenge now in second appeal more particularly when it was also not assailed before the first appellate Court. But however, it is a fact that the entries of the defendants have been existing as tenants in the revenue record w.e.f. the year 1912-13 as per jamabandi Ext. DX followed by the subsequent entries in the jamabandies till the date of conferment of the proprietary rights. The then owners were not reflected in possession of the suit khasra. Further the jamabandies Ext. D1 for the year 1970-71 shows that the land in question was purchased by the plaintiffs as recorded in the column of remarks. Pertinently, there is no averment in the plaint that the plaintiffs had at any point of time purchased the suit khasra nor there is any document of title proving this fact except the remarks made in the column of the said jamabandi, a copy whereof was obtained by the plaintiffs on 11.10.1991 which makes the reference of mutation No. 178 in their favour. Legally the jamabandi is not a document of title, on the basis of which plaintiffs had staked their claim. The perusal of revenue record shows that their predecessors, who were real owners had never objected to or challenged the status of tenancy of the defendants in any manner. There is nothing on record to show as to when the plaintiffs had purchased the suit land. The date of conferment of proprietary rights on the defendants is 15.6.1976, i.e., prior to their purchase. Thus the plaintiffs knew fully well the existing position in revenue record. 14. Section 2 (17) of the Tenancy and Land Reforms Act defines the “tenant”, which means a person who holds a land under a land owner, and is, or but for a contract to the contrary would be liable to pay rent for that land to land owner. Although rent is an essential ingredient of tenancy but, the learned first appellate Court rightly held that it is not a condition precedent. Although rent is an essential ingredient of tenancy but, the learned first appellate Court rightly held that it is not a condition precedent. There can be contract to the contrary and by not paying rent for a long period would not cause cessation of the relationship of landlord and the tenant. The land in question was Banjar Kadeem and the column of possession in revenue record reflects the entry, BIla Lagan Gair Majrua lateron made cultivable and the entry in the jamabandies for the year 1930-31 Ext. D4 Batai Nisfi Galla Billa Ghas ba Billa Kharch Malikana. These entries clearly indicates the contract to the contrary inter se the then land owners and the predecessor-in-interest of the defendants. The plaintiffs could not rebut the presumption of the long existing entries of tenancy in the record of rights and the conferment of the proprietary rights after the rules came into force, makes out a case in favour of the defendants and in absence of the challenge to the fundamental procedure and principles, the Civil court sans jurisdiction to try and determine the suit in view of the Chuhniya Devi’s case (supra) and further the suit was also barred under Section 57 of the Consolidation of Holdings Act as held by the learned first appellate Court. In my opinion, there is no mis-appreciation or misinterpretation of evidence by the learned first appellate court. The factum of tenancy of defendants stands established. 15. No other point urged or pressed. 16. The substantial question of law aforesaid stands accordingly answered. 17. For the foregoing reasons, appeal lacks merit and is accordingly dismissed.