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2012 DIGILAW 815 (HP)

Biaso v. Joginder Pal

2012-11-09

SANJAY KAROL

body2012
Judgment Sanjay Karol, J. Plaintiffs suit stands decreed in terms of judgment and decree dated 19.1.1985 passed by Sub Judge IIIrd Class, Nurpur, District Kangra, H.P., in Civil Suit No.283/81 old.498/94 new, titled as Joginder Pal and others vs. Bachittar Singh and others, which stands affirmed by the Additional District Judge (I), Kangra at Dharamshala, in terms of judgment and decree dated 15.3.2001 passed in Civil Appeal No. 26 of 1985, titled as Bachittar Singh and another vs. Joginder Paul and others. 2. This is the defendants’ Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908, assailing concurrent findings of fact recorded by the Courts below in terms of judgment and decree referred to hereinabove. 3. Shri Joginder Pal (plaintiff No.1), Shri Bansi Lal (plaintiff No.2), Smt. Soma Devi (plaintiff No.3), Smt. Bhagwanti (plaintiff No.4) and Smt. Sushilla Devi (plaintiff No.5) (hereinafter referred to as plaintiffs, which expression for all intents and purposes shall include their legal heirs as well) filed a suit for declaration against Shri Bachittar Singh (defendant No.1), Shri Rattan alias Rattan Chand (defendant No.2) and Shri Jagtu (defendant No.3) (hereinafter referred to as defendants, which expression for all intents and purposes shall include their legal heirs also), to the effect that they are owners of the suit land. The suit was amended and they claimed possession thereof from the defendants. 4. Defendants resisted and contested the suit claiming themselves to be tenants over the suit land and having perfected their title by virtue of the provisions of the H.P. Tenancy and Land Reforms Act, 1972 (for short, Tenancy Act). 5. Based on the pleadings of the parties, trial Court framed the following issues:- 1. Whether the plaintiffs are owners in possession of the suit land, as alleged? OPP 1A. If Issue No.1 is not proved whether the plaintiffs are entitled to possession by way of alternative relief? OPP 2. Whether the suit is maintainable in the present form? OPP 3. Whether the defendants were the tenants over the suit land have become owners under H.P. Tenancy and Land Reforms Act? OPD. 6. The trial Court decreed the plaintiffs’ suit rejecting the defendants’ plea of tenancy. The said findings of fact stand affirmed by the lower appellate Court in terms of the impugned judgment and decree. 7. The present appeal was admitted on the following substantial questions of law:- “1. OPD. 6. The trial Court decreed the plaintiffs’ suit rejecting the defendants’ plea of tenancy. The said findings of fact stand affirmed by the lower appellate Court in terms of the impugned judgment and decree. 7. The present appeal was admitted on the following substantial questions of law:- “1. Whether both the Courts below have acted beyond their jurisdiction in proceeding to determine the question of status of the defendant-appellants not to be tenants over the suit land, particularly, when the competent authority under the Act, after detailed enquiry determined the status of the defendant-appellants to be that of tenants as mentioned in Exhibit DX and upheld in appeal by the Appellate Authority in Exhibit D1? 2. Whether in view of the specific bar created under the H.P. Tenancy and Land Reforms Act, the jurisdiction of Civil Court was barred to go into the validity of the orders in the proceedings taken under the provisions of the H.P. Tenancy and land Reforms Act particularly when there was no pleadings made by the plaintiffs that such authorities either have acted beyond their jurisdiction or acted contrary to the fundamental principles of judicial procedure?” 8. Having heard learned counsel for the parties, I am of the considered view that the appeal only merits rejection. 9. The Courts below have concurrently held that the defendants failed to produce any evidence, oral and documentary, to establish their plea of tenancy. In contrast, plaintiffs proved revenue record i.e. Jamabandies, Khasra Girdwari, Misal Hakiyat Bandobast Jadid and Parcha Zamindari (Ext.P-1 to Ext.P-7), right from the year 1967 upto the year 1982, clearly establishing the plaintiffs to be owners of the suit land. No where in the revenue record, defendants were ever recorded as tenants. 10. Defendant No.1 examined himself as DW-1 and in support also examined three more witnesses, namely, Ram Rakha (DW-2), Khaimbu Ram (DW-3) and Tulsi Ram (DW-4). The Courts below concurrently did not believe their testimonies to be trustworthy or conclusively establishing the defendants’ claim with regard to their tenancy. I find no reason to differ with the said findings. It is a settled position of law that under the Tenancy Act (Section 37) corrections in the revenue entries can be made on the asking of the party. At no point in time, defendants sought correction of such entries. Also tenancy can only be created under the Tenancy Act. I find no reason to differ with the said findings. It is a settled position of law that under the Tenancy Act (Section 37) corrections in the revenue entries can be made on the asking of the party. At no point in time, defendants sought correction of such entries. Also tenancy can only be created under the Tenancy Act. This Court in Prem Dass and others vs. Jagdish, 1997 (2) S.L.J. 984 and Ram Chand and others vs. Jagat Ram and others, 1997 (1) Sim.L.C. 164, has held that the question of tenancy can specifically be gone into by a Civil Court. 11. However, my attention has also been invited to the order (Ext.D-1) passed by the Settlement Collector holding the defendants to be tenants over the suit land. Now, this order in view of the decision rendered by the Punjab and Haryana High Court in Gurnam Singh vs. Jagjit, 1975 PLJ-505, rightly relied upon by the Courts below, cannot be looked into for the simple reason that the order was passed during the pendency of the suit, which was instituted on 3.11.1981. 12. The decision rendered by this Court in Chuhniya Devi vs. Jindu Ram, (1991) 1 Sim.L.C. 223, relied upon by the defendants, in my considered view is totally misplaced. In the instant case, as on the date the suit was instituted, there was nothing on record to show that defendants were the tenants. Also defendants did not lead any oral and documentary evidence to establish their tenancy having been created in accordance with the Tenancy Act. Section 104(4) of the Tenancy Act does not apply at all in the given facts and circumstances. Plaintiffs by adducing oral and documentary evidence, in any event, successfully discharged such burden. The bar of jurisdiction of Civil Court under the provisions of Tenancy Act is inapplicable in the given facts for the reasons aforesaid. 13. Substantial questions of law are answered accordingly. Concurrent of findings of fact cannot be said to be perverse, erroneous warranting interference by the Court. In view of the same, present appeal is dismissed. No costs.