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2014 DIGILAW 290 (HP)

Ram Krishan v. Naresh Kumar

2014-03-27

RAJIV SHARMA

body2014
Judgment Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree, dated 15.1.2014, rendered by learned Additional District Judge, Sirmaur at Nahan, in Civil Appeal No.10-N/13 of 2013. 2. “Key facts” necessary for the adjudication of this Regular Second Appeal are that the respondents/plaintiffs (hereinafter referred to as the “plaintiffs” for the sake of convenience) filed a suit for possession against the appellant/defendant (hereinafter referred to as the “defendant” for the sake of convenience) on the basis of title of the land comprised in Khata Khatauni No.66/156,bearing Khasra No.128 measuring 0-09-22 hectares, i.e. 1-2 bighas old Khata Khatauni No.162/287, Khasra No.28 as per jamabandi for the year 2000-01, situated at Mauza Bhatanwali, Tehsil Paonta Sahib, District Sirmaur. 3. According to the plaintiffs, they are owners of the suit land. They reside in Tehsil and District Una, which is at a distance of 300 kms from Paonta Sahib. They visited Paonta Sahib in the month of July 2007. When plaintiffs No.1 and 2 went to village Bhatanwali, they were surprised and shocked to notice that the defendant was in possession of the suit land without any right, title and interest. The plaintiffs became suspicious and went to the Patwari and obtained copy of order dated 27.4.2004 passed by the Assistant Collector, 2nd Grade, Settlement, Paonta Sahib, whereby defendant was recorded as “Kabiz” in the revenue record. The order dated 27.4.2004 was wrong, illegal and fraudulent. The proceedings were initiated by the defendant on 22.4.2004 and the order was passed on 27.4.2004. It is in these circumstances, the suit was filed. 4. The suit was contested by the defendant. According to the defendant, one Babu, predecessor of the plaintiffs, was owner of Khasra N.282/26, total measuring 14-12 bighas, out of which 1-2 bigha was “banjar kadim” and the remaining land was cultivable. He inducted grand father of defendant, namely, Panchi as non-occupancy tenant on Khasra No.282/26min measuring 9-2 bighas whose new number is 27, on payment of 1/4th batai. Adjoining to this Khasra number, there was uncultivated of total 14-12 bighas, he inducted Banta as non-occupancy tenant. After the death of Panchi, his son Gurdiyal inherited the non occupancy tenancy rights of his father on Khasra No.282/26 min measuring 9-2 bighas and after inheritance, he encroached upon the adjoining banjar land, and made it cultivable. Adjoining to this Khasra number, there was uncultivated of total 14-12 bighas, he inducted Banta as non-occupancy tenant. After the death of Panchi, his son Gurdiyal inherited the non occupancy tenancy rights of his father on Khasra No.282/26 min measuring 9-2 bighas and after inheritance, he encroached upon the adjoining banjar land, and made it cultivable. Thus, he acceded the same with his tenancy and became a non-occupancy tenant on Khasra Nos. 27 and 28 Gurdiyal acquired the proprietary rights of 7-16 bighas and remained as non-occupancy tenant over 1-6 bigha land Khasra No.27 and also remained tenant over Khasra No.28, i.e. the suit land and is cultivating the same openly to the knowledge of the plaintiff as non-occupancy tenant. According to him, his father was in possession of Khasra Nos. 27 and 28. 5. Learned trial court framed the issues on 26.8.2009 and decreed the suit vide judgment and decree dated 29.10.2011. 6. The defendant feeling aggrieved by judgment and decree dated 29.10.2011 filed an appeal before learned first appellate court, who vide judgment and decree dated 15.1.2014 dismissed the same. Hence, this Regular Second Appeal. 6. Mr. Karan Singh Kanwar, learned Advocate, on the basis of substantial questions of law framed, has vehemently argued that the learned courts below have misread and misconstrued the oral as well as documentary evidence. According to him, land adjoining to the land under Gurdiyal was necessary party. 7. I have heard learned counsel for the appellant and have gone through the record carefully. 8. Since all the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid repetition of discussion of evidence. 9. Plaintiff Naresh Kumar appeared as PW1. According to him, the suit land was measuring 1-2 Bighas. The defendant had encroached upon the suit land in the year 2004. The defendant filed an application on 22.4.2004 and the order was passed on 27.4.2004 by the Assistant Collector, 2nd Grade (Settlement). The plaintiffs were not called at time of passing of the order. He produced copy of order passed by Assistant Collector, 2nd Grade, Ext.PW1/A, copy of statement, Ext.PW1/B, statement of defendant Ext.PW1/C, copy of jamabandi for the year 2000-01, Ext.PW1/D, copy of jamabandi for the year 2004-05 Ext.PW1/E and copy of the sale deed Ext.PW1/G. His father was owner of Khasra No.282/26 measuring 14 Bighas, situated at Bhatanwali. He produced copy of order passed by Assistant Collector, 2nd Grade, Ext.PW1/A, copy of statement, Ext.PW1/B, statement of defendant Ext.PW1/C, copy of jamabandi for the year 2000-01, Ext.PW1/D, copy of jamabandi for the year 2004-05 Ext.PW1/E and copy of the sale deed Ext.PW1/G. His father was owner of Khasra No.282/26 measuring 14 Bighas, situated at Bhatanwali. He also admitted that out of 14-12 bighas, 9-2 bighas land was given to Panchi on rent. He further admitted that out of aforesaid land, remaining 1-2 bigha is ‘Banjar Kadim’. He denied that in the year 1980, Gurdiyal Singh encroached upon 1-2 Bigha, ‘Banjar Kadim’ land, dug it and cut the bushes and made it cultivable. He 1-2 bigha land. 10. Defendant, Ram Kishan appeared as DW1 and led his evidence by way of filing of an affidavit, Ext.DW1/A. He furnished copy of Missal Haquiat for the year 1959-60, Ext.D1, Khatauni Parcha, Ext.D2, copy of Musabi Ext. D3 and copy of jamabandi for the year 1979-80, Ext.D4. In cross-examination, he admitted that earlier Babu Ram was owner of the suit land and thereafter, the plaintiffs are the owners. 11. According to Jamabandi for the year 2000-01, Ext.PW1/D, the plaintiffs are in owners in possession of the suit land and the name of the defendant has not been shown in the column of ownership or possession. However, in Jamabandi for the year 2004-05, Ext.PW1/E, name of the defendant has been shown in column of possession qua the suit land on the basis of order dated 27.4.2004 passed by the Assistant Collector, 2nd Grade (Settlement). The Assistant Collector, 2nd Grade (Settlement) has passed the order dated 27.4.2004 on the basis of the statements of Kehar Singh, Namberdar, Sultan Singh and Ram Swaroop in absence of the plaintiffs. The defendant has not led any tangible evidence to show that the plaintiffs were ever informed about the proceedings. In fact as per zimini order passed by Assistant Collector, 2nd Grade, Ext.PW1/A, none was present on behalf of the owners. Defendant has not been shown in column of possession after 1980 till 2004. Usually, girdwari is conducted twice in a year to record the change in prove that he was tenant over the suit land. Even in the jamabandi Ext.PW1/A for the year 2004-05, defendant has not been recorded as non-occupancy tenant over the suit land. There is no reference with regard to payment of rent. Usually, girdwari is conducted twice in a year to record the change in prove that he was tenant over the suit land. Even in the jamabandi Ext.PW1/A for the year 2004-05, defendant has not been recorded as non-occupancy tenant over the suit land. There is no reference with regard to payment of rent. It is well settled that tenancy is a bilateral act. It was necessary for the defendant to prove creation of tenancy, i.e. by way of payment of rent, gala batai/chakota etc.. 12. As per statement of DW1 Ram Kishan recorded before Assistant Collector, 2nd Grade, he had stated that he was in possession of the suit land since generation and his name be recorded in the revenue record. However, DW1 Ram Kishan has approached the civil court with different version that he was not in actual possession of the suit land and his father was in possession over the suit land as non-occupancy tenant. Neither the defendant nor his father has been shown in the column of possession qua the suit land in the revenue record w.e.f. 1980 to 2004. The application was preferred by the defendant before the Assistant Collector, 2nd Grade (Settlement) on 22.4.2004 and was decided on 27.4.2004 in hurry, without hearing the parties. Long standing entries cannot be set to naught by passing an exparte order behind the back of the parties. There was no landlord-tenant relationship. Gurdiyal was not a necessary party in view of the discussions made hereinabove. 13 Their Lordships of Hon’ble Supreme Court in Vidur Impex and Traders Private Limited and others vs. Tosh Apartments Private Limited and others, (2012) 8 “necessary party” and “proper party” as under:- “41. Though there is apparent conflict in the observations made in some of the aforementioned judgments, the broad principles which should govern disposal of an application for impleadment are: 41.1. The Court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have been joined as plaintiff or defendant or whose presence before the Court is necessary for effective and complete adjudication of the issues involved in the suit. 41.2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the Court. 41.3. 41.2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the Court. 41.3. A proper party is a person whose presence would enable the Court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made. 41.4. If a person is not found to be a proper or necessary party, the Court does not have the jurisdiction to order his impleadment against the wishes of the plaintiff. 41.5. In a suit for specific performance, the Court can order impleadment of a purchaser whose conduct is above board, and who files application for being joined as party within reasonable time of his acquiring knowledge about the pending litigation. 41.6. However, if the applicant is guilty of contumacious conduct or is beneficiary of a clandestine transaction or a transaction made by the owner of the suit property in violation of the restraint order passed by the Court or the application is unduly delayed then the Court will be fully justified in declining the prayer for impleadment.” 14 The learned courts below have correctly appreciated the oral as well as documentary evidence. 15 Accordingly, in view of the observations and analysis made hereinabove, there is no question of law much less to say substantial question of law involved in the Regular Second Appeal and the same is dismissed. Pending application(s), if any, also stands dismissed. There shall, however, be no order as to costs.