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2014 DIGILAW 418 (HP)

Trust Prabhdyal Shah Moti Ram Shah v. Roshan Lal

2014-04-21

TARLOK SINGH CHAUHAN

body2014
JUDGMENT : - Tarlok Singh Chauhan, Judge The plaintiff is the appellant, who is aggrieved by the judgment and decree dated 26.3.2002 passed by learned Additional District Judge-I, Kangra at Dharamshala in Civil Appeal No. 223 of 1988 whereby he reversed the judgment and decree dated 25.7.1988 passed by learned Sub Judge, Kangra at Dharamshala, H.P. in Civil Suit No. 132 of 1987. 2. The plaintiff filed a suit for declaration that they were owners in possession of the land comprised in Khata No. 157 min, Khatauni No. 323 min, Khasra No. 200/2, area 0-72-95 hectares jama Rs.11.70 mal (hereinafter referred to as the suit land) situated in Up-Mohal Tangroti, Mohal Yol, Tehsil Dharamshala, District Kangra with consequential relief of permanent injunction against the respondents (hereinafter referred to as the defendants) to the effect that they should not interfere in the possession of the plaintiff over the suit land and mandatory injunction against them to the effect that they should not dis-possess the plaintiff from the suit land unlawfully with the help and collusion of revenue officials. 3. It was further alleged in the plaint that the suit land was recorded in the ownership and possession of the plaintiff in the revenue records and the suit land previously formed a part of the land comprised of Khata No. 157 min, Khatauni No. 323 min, Khasra No. 200, area measuring 1-45-82 hectares. It was averred in the plaint that whole of the land was owned by the plaintiff and was possessed by the defendants as tenants-at-will. It was further averred that on coming into force of the H.P.Tenancy and Land Reforms Act, 1972 (No. 8 of 1974) the plaintiff applied to the Land Reforms Officer, Kangra in LR-V form for resumption for self cultivation and vide order of the Land Reforms Officer dated 24.8.1978 the suit land was allowed to be resumed for self cultivation by the plaintiff. The mutation to this effect was sanctioned at serial No. 53 dated 13.9.82 and possession of the suit land was delivered to the plaintiff on 14.11.1982 vide Rapat Rojnamcha No. 102 of even date. It was further averred that since 14.11.1982 the plaintiff was coming in possession of the suit land as owner. The mutation to this effect was sanctioned at serial No. 53 dated 13.9.82 and possession of the suit land was delivered to the plaintiff on 14.11.1982 vide Rapat Rojnamcha No. 102 of even date. It was further averred that since 14.11.1982 the plaintiff was coming in possession of the suit land as owner. It was further alleged that in the year 1979-80 the defendants in collusion with the Kanungo of the Halqua got incorporated a note in red ink in the column of remarks to the effect that they (defendants) have become owners of the whole of the land i.e. whole khasra No. 200. It was further averred that on coming to know of this illegal entry in the jamabandi, plaintiff applied to the Settlement Collector, Kangra District at Dharamshala for correction thereof and as a result the said illegal entry was deleted and revenue records corrected vide mutation No. 51 dated 9.8.1982. It was further alleged that about 15 days back the defendants once again started proclaiming in the village that they had secured an order from Tehsildar, Kangra in their favour and that they shall now get back the possession of the land from the plaintiff and they apprehend that the defendants may interfere with the possession of the plaintiff over the suit land and they may even try to dispossess the plaintiff unlawfully and forcibly with the help and collusion of revenue officials by securing some unjust and illegal order fraudulently behind the back of the plaintiff or even otherwise. 4. The defendants/respondents contested the suit filed by the plaintiff/appellant by filing written statement-cum-counter claim in which preliminary objections that the suit is barred by the provisions of H.P.Tenancy and Land Reforms Act, jurisdiction, cause of action, suppressing the facts and suit is not within time were taken. On merits, it was contended that the plaintiff was nowhere recorded in possession of the suit land and that the suit land was in the cultivating possession of the defendants. It was further contended that neither the possession was physically delivered to the plaintiff nor the plaintiff was entitled to resume the land of khasra No. 200/2 measuring 0-72-95 hectares, because the plaintiff was already having more land than the resumable one and was not entitled to resume any land out of the tenancy of the defendants. It was further contended that neither the possession was physically delivered to the plaintiff nor the plaintiff was entitled to resume the land of khasra No. 200/2 measuring 0-72-95 hectares, because the plaintiff was already having more land than the resumable one and was not entitled to resume any land out of the tenancy of the defendants. It was further contended that in view of the illegal entries in the revenue record in view of the fraudulent and fictitious application (LR V) the defendants claim that they were entitled for possession of the land of Khasra No. 2002/2, measuring 0-75-95 hectares illegally delivered to the plaintiff vide Rapat Rojnamcha and for the same Court fee of Rs.12/- was affixed (valuation of Rs. 120/-). It was further contended that the entry was rightly made for correcting the illegal entry made in mutation No. 53, as the plaintiff was not found entitled for resumption of any land in the tenancy of the defendants. The entry was, however, found not tenable as the same was not signed by the LRO/Revenue Officer. The plaintiff moved the Settlement Collector against the said entry and the Settlement Collector found the same illegal as having been signed by only a Kanungo and ordered the deletion of the same but the defendants appealed against the order of the Settlement Collector before the Divisional Commissioner and the plaintiff was represented by his counsel before the Divisional Commissioner. The learned Divisional Commissioner accepted the appeal of the defendants partially and held that any entry if required to be made should be done so by way of a mutation. Now since the plaintiff was not found to be entitled for resumption of any land (i.e. the suit land) a further mutation was entered into by the L.R.O. (mutation No. 139) for re-transferring the suit land (the land illegally entered in the possession of the plaintiff) as a measure to correct or amend the order made in mutation No. 53. It was further contended that it is within the competence of the L.R.O. to implement the provisions of Section 104 of the H.P.Tenancy and Land Reforms Act and the Court has no jurisdiction to entertain the suit. The defendants were entitled to seek the possession of the suit land illegally delivered to the plaintiff. The mutation was still pending sanction. It was further contended that it is within the competence of the L.R.O. to implement the provisions of Section 104 of the H.P.Tenancy and Land Reforms Act and the Court has no jurisdiction to entertain the suit. The defendants were entitled to seek the possession of the suit land illegally delivered to the plaintiff. The mutation was still pending sanction. It was further contended that there was no question of any dispossession, as physical possession of the suit land was with the defendants. 5. Replication was filed by the plaintiff and controverted the written statement-cum-counter claim on the grounds that the mutation was rightly sanctioned and the possession was physically delivered and even before the sanctioning of the mutation and the plaintiff was entitled to resume land and it had no land at all under personal cultivation. It was further averred that LR-V application was rightly filed and it was decided in the presence of the defendants. The defendants were now estopped from challenging the order of the Land Reforms Officer or the consequent delivery of possession to the plaintiff of the suit land by their act, conduct and acquiescence and silence. It was further averred that the learned Divisional Commissioner had not ordered for attestation of mutation, but he only directed that legal procedure should be followed. The plaintiff had no knowledge so far that any mutation No. 139 had been entered as alleged and even if it had been entered, it was illegal and not binding on the plaintiff so long as proper procedure was not observed and followed by the Revenue Officer. Unless the order on LR-V form passed by the L.R.O. which was passed in 1978 and had assumed finality, was not set aside, mutation No. 53 giving effect to that order cannot be bye-passed or set aside merely by entering another mutation and no new mutation can be entered legally. No mutation had been sanctioned and so possession cannot be given to anyone on the basis of mutation. 6. On 11.8.1987, the learned trial Court framed the following issues: 1. Whether the suit is barred by the provisions of H.P.Tenancy and Land Reforms Act? OPD 2. Whether this Court has no jurisdiction to try this suit? OPD 3. Whether the plaintiff has no cause of action? OPD 4. Whether the suit is within time? OPP 5. 6. On 11.8.1987, the learned trial Court framed the following issues: 1. Whether the suit is barred by the provisions of H.P.Tenancy and Land Reforms Act? OPD 2. Whether this Court has no jurisdiction to try this suit? OPD 3. Whether the plaintiff has no cause of action? OPD 4. Whether the suit is within time? OPP 5. Whether the plaintiff is owner in possession of the suit land? OPP 6. Whether the defendants are entitled to decree of possession by way of counter claim as alleged? OPD 7. Whether the defendants are estopped from claiming ownership and possession of the suit land as alleged? OPP 8. Whether the counter claim of the defendants is not tenable in the present suit? OPP 9. Relief. 7. The learned trial Court after recording the evidence was pleased to decree the suit as prayed for. Aggrieved by the judgment and decree passed by the learned trial Court, the defendants/respondents preferred an appeal before the learned lower Appellate Court, who vide his judgment and decree dated 26.3.2002 has been pleased to set-aside the judgment and decree of the learned trial Court. This is now the plaintiff, who is in appeal before this Court against the judgment and decree passed by the learned lower Appellate Court. 8. On 6.6.2002 this Court admitted the appeal on following substantial question of law: “Whether the lower Appellate Court misread the true import of Exhibit D-1 by not putting reliance on Exhibit P-1, presumption of which stood rebutted?” 9. I have heard Mr. Bhupender Gupta, Senior Advocate assisted by Mr. Janesh Gupta, Advocate, learned counsel for the appellant and Mr. Ajay Sharma, learned counsel for the respondents and have also gone through the records carefully. 10. The admitted facts in the present case are that the plaintiff was the landlord while the defendants were the tenants of the land bearing Khasra No. 200 measuring 1-45-82 hectares. It is also not disputed that the resumption proceedings were initiated by the plaintiff/appellant in which the land measuring 0-72-95 hectares was ordered to be resumed in its favour vide mutation No. 53 now denoted by Khasra No. 200/2. The plaintiff /appellant were declared owner of the land resumed and consequently possession was also delivered which is stated to have been delivered on 14.11.1982. The plaintiff /appellant were declared owner of the land resumed and consequently possession was also delivered which is stated to have been delivered on 14.11.1982. Similarly, vide mutation No. 52 proprietary rights in respect of the remaining land now denoted by Khasra No. 200/1 measuring 0-72-87 hectares was conferred upon the defendants/respondents. It appears that vide mutation No. 139 the order of resumption had been set aside and the land was ordered to be returned to the defendants/respondents meaning thereby that the defendants/respondents became the owner of the other land. 11. No doubt, the learned trial Court had observed that there was no proof of any such mutation having been entered or sanctioned in favour of the defendants. However, these observations of the learned trial Court appears to be self contradictory because in the revenue records, being jamabandi Ex.P-2, reference is found to not only mutation Nos. 52 and 53, but even mutation No. 139. In case the learned trial Court had relied upon the remarks column of the jamabandi, then no distinction could be made in the reading of different mutations entered therein being mutation Nos. 52, 53 and 139 for that matter. Once the presumption of truth is attached to the entries to the jamabandi, then the presumption was required to be attached even to the entry made in the remarks column therein. 12. Unfortunately, none of the parties have placed on record the proceedings of the Settlement Collector. However, the order passed by the Divisional Commissioner in appeal on 2.11.1985 is available on the record as Ex. D-1, which reads as follows: “This appeal under Section 14 of the H.P. Land Revenue Act has been preferred by S/Shri Chiplu Ram, Roshan Lal and others, residents of Bassi Mohal Yol (Tangroti Yol), Tehsil and District Kangra against Sadabrat and others residents of Kangra. 2. The appellants are represented by Kr. Parkash Singh, Advocate while the respondents are represented by Shri B.K.Sood, Advocate. 3. The parties have been heard and the record of the case has been gone through very carefully. 4. The facts of the case in brief are that the appellants stood recorded as tenants-at-will paying rent under the respondents alongwith other tenants in other Mohals. Parkash Singh, Advocate while the respondents are represented by Shri B.K.Sood, Advocate. 3. The parties have been heard and the record of the case has been gone through very carefully. 4. The facts of the case in brief are that the appellants stood recorded as tenants-at-will paying rent under the respondents alongwith other tenants in other Mohals. The respondents filed LR-V forms for resumption of land before the Land Reforms Officer, Kangra who vide his order dated 24.8.78 ordered the choice to be made by the land owners for resumption of land. In the meantime as per note in remarks column of jamabandi for the year 1967-68 against Khata No. 90, Khatauni No. 238, Khasra numbers 203, 204, 208 total measuring 39 Kanals 2 Marlas, Shri Chepa predecessor in interest of appellant who stood recorded as tenant paying rent under the respondents was ordered to be made owner of the land within provisions of section 104 of the H.P.Tenancy and Land Reforms Act, 1972. This order is signed by the Kanungo only. The present respondents made an application before the Settlement Collector stating that the note in red ink had crept in the jamabandi erroneously. The Settlement Collector after holding due enquiry and after hearing the parties vide his order dated 7.6.82 accepted the plea of the respondents, annulled the red entry and ordered that entries in the revenue record in accordance with the order dated 24.8.78 of the Land Reforms Officer, Kangra be carried out. It is against this order that the present appeal has been preferred. 5. The learned counsel for the appellants has urged that the respondents had already resumed more than one and a half acre of irrigated land as required under the H.P. Tenancy and Land Reforms Act and therefore, the present land cannot be resumed by them and has rightly been given to the ownership of the appellants as per note in the jamabandi. 6. I have carefully considered the whole matter, have scrutinized the record and have come to the conclusion that conferment of the proprietary rights upon the appellants through note in the jamabandi which note is signed by only a Kanungo cannot stand correct in the eyes of law. As per new instructions, such entries have got to be made by way of proper mutation and as such, the order of the Ld. Settlement Collector to that extent is right. As per new instructions, such entries have got to be made by way of proper mutation and as such, the order of the Ld. Settlement Collector to that extent is right. So far as the question of implementation of the order dated 24.8.78 of Land Reforms Officer, Kangra as ordered by the Ld. Settlement Collector in his impugned order is concerned, the said order is to be implemented by the Land Reforms Officer within the choice of land to be resumed by the land-owners to the extent admissible within the H.P. Tenancy and Land Reforms Act and the land so resumed will go to the absolute ownership and possession of the respondents and the rest of the land to the ownership of the appellants and other tenants and mutations will be sanctioned accordingly. With these observations, the appeal is partially allowed.” 13. This order was implemented vide Ex.D-2 which is an order of the Land Reform Officer dated 5.1.87 and mutation to this effect vide mutation No. 139 was duly attested. The learned trial Court could not have had a selective reading of the revenue record because none of the mutations 52, 53 or for that matter mutation No. 139 had been placed on record. However, the entry qua these mutations is found in the revenue record being the jamabandi for the year 1980-81 which is exhibited on record as Ex.P-2 and Ex.D-3, respectively. 14. The learned trial Court has relied upon the mutation Nos. 52 and 53 in the following terms: “From the perusal of the above discussed oral as well as documentary evidence, it has come on record that the owners i.e. the plaintiff filed LR-V form No. 3729 for resumption of land on 1.12.75 which was decided by the LRO after hearing both the parties on 24.8.1978 whereby the land in suit was allowed to be resumed by the plaintiff and 52 and 53 mutations in respect thereof were sanctioned by the Revenue Officer on 9.8.82 and 13.9.82, respectively, as is evident from Ex.P-2, jamabandi for the year 1980-81. Accordingly, the possession of the suit land was also delivered to the plaintiff vide Ex.P-1, Rapat Roznamcha No. 102 dated 14.11.82. There is no other mutation or any other order of the Revenue Officer which may override the aforesaid mutations No.52 and 53. Accordingly, the possession of the suit land was also delivered to the plaintiff vide Ex.P-1, Rapat Roznamcha No. 102 dated 14.11.82. There is no other mutation or any other order of the Revenue Officer which may override the aforesaid mutations No.52 and 53. No doubt, the defendants have taken the plea in their written statement that the plaintiff cannot resume the land in suit for self-cultivation and that the possession of the suit land was not delivered to the plaintiff but the record shows that the possession of the suit land has since been delivered to the plaintiff.” With respect to mutation No. 139, the learned trial Court has given the following reasoning: “The defendant has further taken a plea that as the plaintiff was not found to be entitled for resumption of suit land, a further mutation No. 139 has been entered by the LRO for correcting the earlier mutation No. 53. However, there is no proof of any such mutation having been entered or sanctioned in favour of the defendants. Accordingly, the said contention and counter claim of the defendants is without merit and not tenable and the same is liable to be rejected. In view of this discussion, I accordingly hold that the plaintiff is owner in possession of the suit land.” 15. This is not the correct way of reading a document. The document is to be read as a whole and, therefore, such findings recorded by the learned trial Court have been rightly reversed by the learned lower Appellate Court. The learned trial Court could not have ignored mutation No. 139 much less on the basis of the reasoning given by it. Since the mutation No. 53 stands superseded by mutation No. 139 on the basis of the order passed by the competent authority, the entry in the Rojnamcha Wakyat dated 14.11.1982 Ex.P-1 becomes insignificant. Accordingly, the substantial question of law is answered against the appellant and consequently the appeal is dismissed with no order as to costs.