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2013 DIGILAW 373 (HP)

Ashok Kumar v. Satya Devi

2013-05-01

RAJIV SHARMA

body2013
JUDGMENT : Rajiv Sharma, J. – This Regular Second Appeal is directed against the judgment and decree, dated 26.10.2009, passed by the learned Additional District Judge, Una, District Una, H.P., in Civil Appeal No. 71 of 2007. 2. Material facts necessary for adjudication of this Regular Second Appeal, are that the respondent-plaintiff (hereinafter referred to as the plaintiff for the sake of convenience) has filed a suit for declaration with permanent injunction and in the alternative for possession against the appellant-defendant (hereinafter referred to as the defendant for the sake of convenience). According to the plaintiff, she is owner in possession of land measuring 10-11 Kanals, comprised in Khewat No. 593, Khatauni No. 838 at present Khasra No. 1454, as entered in the Jamabandi for the year 1983-84, situated in Village Kuthera, Tehsil Amb, District Una, Himachal Pradesh and red ink note showing defendant as tenant at will is absolutely false, frivolous, baseless, illegal at the back of plaintiff and without jurisdiction. This entry has been made without the orders of the competent authority. According to the plaintiff, the defendant is a claver and influential person. He in connivance with the Halqua Patwari succeeded in getting red note inserted in the revenue record to the effect that he is tenant at will. 3. The suit was contested by the defendant. According to the defendant, the suit land was in the ownership of Gram Panchayat, Deh. The defendant claimed to be in possession being adjoining land owner since more than 20 years. According to him, the suit land was allotted to the plaintiff somewhere in the year 1975, but the defendant was also in possession of his own capacity. There was a dispute, which was settled amicably in the presence of Pradhan of Gram Panchayat, Kaka Ram as well as Tara Chand. He was inducted as tenant on payment of rent to the tune of Rs. 105/- per annum. On 10.01.1988, a receipt was executed in favour of the defendant where plaintiff herself has given suit land to the defendant on tenancy. According to him, he has become absolute owner as per the provisions of Himachal Pradesh Tenancy and Land reforms Act, 1972. 4. Replication was filed by the plaintiff. Learned trial Court framed the issues on 30.12.2003. On 10.01.1988, a receipt was executed in favour of the defendant where plaintiff herself has given suit land to the defendant on tenancy. According to him, he has become absolute owner as per the provisions of Himachal Pradesh Tenancy and Land reforms Act, 1972. 4. Replication was filed by the plaintiff. Learned trial Court framed the issues on 30.12.2003. Learned trial Court decreed the suit on 29.10.2007 and the plaintiff was held as owner in possession of the suit land and entry existing in the column of remarks in Jamabandi for the year 1983-84 to the effect that defendant is non-occupancy tenant was declared incorrect. The defendant was also restrained from claiming any right in the suit land and interfering in any manner with the same. 5. The defendant preferred an appeal before the learned Additional District Judge, Una, District Una, Himachal Pradesh He dismissed the same on 26.10.2009. Hence this Regular Second Appeal . 6. This Regular Second Appeal was admitted on the following substantial question of law on 07.10.2010: "Whether the finding by the Trial Court that Civil Court has jurisdiction and assumption of that finding being correct by the first Appellate Court is not well founded being contrary to law? 7. Mr. G.D. Verma, learned Senior Advocate has vehemently argued that the learned Civil Court has no jurisdiction in view of Section 57 of the Himachal Pradesh Holdings (Consolidation & Prevention of Fragmentation) Act, 1971. 8. Learned trial Court has framed issue No. 5 with regard to the jurisdiction of the Civil Court. Learned trial Court has returned a finding that the status of the defendant as tenant at will was incorrect. Learned trial Court has come to the conclusion that the tenancy could not be proved merely on the basis of receipt Ex.-DW1/A. 9. It was also argued by the learned Advocate appearing on behalf of the defendant that the Civil Court has no jurisdiction as the defendant was inducted as tenant after the commencement of Himachal Pradesh Tenancy and Land Reforms Act. 10. What emerges from the evidence led by the parties is that as per Jamabandi for the year 1983-84, Ex.-P1, the plaintiff has been shown as owner in self cultivatory possession. However, in the Jamabandi, a note as per report No. 249 possession of the defendant has been ordered to be recorded as Gair Maurusi tenant. 10. What emerges from the evidence led by the parties is that as per Jamabandi for the year 1983-84, Ex.-P1, the plaintiff has been shown as owner in self cultivatory possession. However, in the Jamabandi, a note as per report No. 249 possession of the defendant has been ordered to be recorded as Gair Maurusi tenant. According to Nakal Fasal Ravi for the year 1984, the plaintiff is shown as owner in self cultivatory possession. However, the possession has been shown to be of Ashok Kumar, defendant. The defendant claimed that he was inducted as tenant in the year 1988. The defendant was never tenant on the appointed day, i.e., when the Himachal Pradesh Tenancy and Land Reforms Act came into force. It was necessary for the defendant to prove the payment of rent. The tenancy is a bilateral Act. The defendant has not led any tangible evidence to establish that he was paying rent either to the Gram Panchayat or to the owner. The defendant has not examined Tara Chand or the Pradhan, who were the marginal witnesses of Ex.- DW1/A. The revenue entry could not be changed in favour of the defendant without the orders of the competent authority. The defendant has not placed on record any order passed by the competent authority necessitating the red entry in the record, showing the status of the defendant as tenant at will. It is a stray entry, which has not been explained by the defendant. 11. The village was under consolidation operation till 1983-84. PW-1, Gian Chand has proved two reports. PW-2 Amar Singh has deposed that his mother was hard of hearing and sick. According to him, the defendant in connivance with Patwari, has got stray entry of Gair Marausi made in his favour. Plaintiffs witness Ram Dhan has deposed that defendant has no right over the suit land. According to him, the suit land was allotted to Satya Devi by the State of Himachal Pradesh According to Ashok Kumar, DW-1, initially Gram Panchayat and thereafter the State became the owner. In his cross-examination, he has admitted that his father was Pradhan of Kuthera. DW-2 Kaka Ram has deposed that he has written the receipt and handed over the same to the witnesses and the parties have signed the same. There is a detailed procedure, the manner in which the rent is received in the form of Chakauta etc. In his cross-examination, he has admitted that his father was Pradhan of Kuthera. DW-2 Kaka Ram has deposed that he has written the receipt and handed over the same to the witnesses and the parties have signed the same. There is a detailed procedure, the manner in which the rent is received in the form of Chakauta etc. The tenancy cannot be presumed to be created in favour of the defendant merely on the basis of Ex.-DW1/A, which is also not duly proved by the defendant. The defendant, as noticed herein above, has failed to prove that he was paying rent either to the State or to the Gram Panchayat. There is no revenue entry entered in favour of the defendant before 1983-84. 12. It would also be apt to note that Kaka Ram, DW-2 was serving under the father of the defendant as Secretary. The defendant has never put up the plea of tenancy against the State of Himachal Pradesh or the Gram Panchayat in the written statement. The defendant could not be in possession of the suit land, as reflected in the revenue record, because had it been so, the consolidation authorities would have noticed his possession. On the basis of the stray entry, the defendant has claimed the status of non-occupancy tenant. The defendant has failed to prove that he was tenant either under the Gram Panchayat, State Government or the plaintiff. The Civil Court has the jurisdiction to adjudicate upon the matter. The defendant has never been inducted as tenant either by the Gram Panchayat, State Government or by the plaintiff. He has not paid any rent to prove tenancy. He could not substantiate Ex.-DW1/A. 13. Case of the plaintiff, in a nut-shell, is that the stray entry made in the revenue record is in connivance with the revenue officials. There is considerable merit in this plea raised by the plaintiff. As per the record, the plaintiff has been allotted land by the Gram Panchayat. Her possession has been shown over the same in the Jamabandi for the year 1983-84. Accordingly, the jurisdiction of the Civil Court was not ousted under Section 57 of the Himachal Pradesh Holdings (Consolidation & Prevention of Fragmentation) Act, 1971, as argued by Mr. G.D. Verma, learned Senior Advocate. 14. There is a detailed procedure, the manner in which the revenue entry is entered. Accordingly, the jurisdiction of the Civil Court was not ousted under Section 57 of the Himachal Pradesh Holdings (Consolidation & Prevention of Fragmentation) Act, 1971, as argued by Mr. G.D. Verma, learned Senior Advocate. 14. There is a detailed procedure, the manner in which the revenue entry is entered. The parties are required to be heard before any change is made in the revenue record. It is reiterated that the defendant has not placed on record any order passed by the competent authority incorporating his name as non-occupancy tenant on payment of rent. The order passed by the revenue agency making red entry showing possession of the defendant was illegal. It was against the principles of natural justice. The procedure prescribed has not been followed. 15. The defendant has also filed an application bearing CMP No. 398 of 2013, seeking liberty of this Court to place on record agreement to sell dated, 30.06.2012 and 20.10.2012 vide Annexures A-1 and A-2. Since the defendant has not been held to be tenant over the suit land, there is no merit in this application and the same is dismissed. Both the Courts below have correctly appreciated the oral as well as documentary evidence. The substantial question of law is answered accordingly. 16. Accordingly, in view of the observations and discussions made herein above, there is no merit in this Regular Second Appeal and the same is dismissed, so also the pending applications, if any. No costs.