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2015 DIGILAW 1405 (HP)

Khalailo Ram v. Hoshiar Singh

2015-10-06

RAJIV SHARMA

body2015
JUDGMENT : Rajiv Sharma, J. This regular second appeal is directed against the judgment and decree of the learned Addl. District Judge, Hamirpur, H.P. dated 22.2.2003, passed in Civil Appeal No. 78/96(RBT No. 119/2002). 2. “Key facts” necessary for the adjudication of this regular second appeal are that the appellant-plaintiff (hereinafter referred to as the plaintiff), has instituted suit against the respondents-defendants (hereinafter referred to as the defendants) for declaration. According to the plaintiff, he was owner-in-possession of the land comprised in Khata No. 52, Khatoni No. 93, Kh. No. 389, measuring 41 kanals 18 marlas, situated in Tika Saharwin, Mouja Fahal, Tehsil Nadaun, Distt. Hamirpur, H.P. His ancestors were in possession of the suit land as tenant at will earlier and on the death of his predecessors-in-interest, namely, Finu and Roda, the plaintiff came in possession of the suit land as tenant and by operation of H.P. Tenancy and Land Reforms Act, he has become owner. The defendants and their predecessor-in-interest got the entries in respect of the suit land deleted in the year 1946 from the revenue record behind the back of the predecessor-ininterest and without their knowledge and thereafter the revenue entries were wrongly incorporated in favour of the defendants qua the suit land. He was never dispossessed from the suit land and he was still in cultivatory possession over the suit land. The defendants started interfering in his peaceful possession in the month of May, 1989 when he verified revenue entries and came to know that these entries have been incorporated illegally in favour of the defendants. 3. The suit was contested by the defendants. According to them, they were in possession of the suit land. Neither the predecessor-in-interest of the plaintiff nor the plaintiff was inducted as tenants over the suit land in the year 1951-52. He was coming in possession of the suit land as co-owner. 4. The replication was filed by the plaintiff. The learned trial Court framed the issues on 14.3.1991. The suit was decreed by the learned trial Court vide judgment dated 10.6.1996. The predecessor-in-interest of defendant No. 1 Mehar Singh who died during the pendency of the appeal before the learned Addl. District Judge, Hamirpur, filed an appeal before the learned Addl. District Judge, Hamirpur against the judgment and decree dated 10.6.1996. Defendants No. 2 to 11 also filed separate joint appeal against the judgment and decree dated 10.6.1996. The predecessor-in-interest of defendant No. 1 Mehar Singh who died during the pendency of the appeal before the learned Addl. District Judge, Hamirpur, filed an appeal before the learned Addl. District Judge, Hamirpur against the judgment and decree dated 10.6.1996. Defendants No. 2 to 11 also filed separate joint appeal against the judgment and decree dated 10.6.1996. The learned Addl. District Judge, Hamirpur, allowed these appeals on 22.2.2003. Hence, this regular second appeal. 5. The regular second appeal was admitted on the following substantial questions of law on 25.4.2003: “1. Whether the impugned judgment and decree is the result of complete misreading, misinterpretation as well as mis-appreciation of Ext. DX Rapat Roznamcha? 2. Whether the impugned judgment and decree can be sustained especially when the learned lower appellate Court has not taken into consideration the documents Ext. PXI to Ext. PX5, i.e. consistent entries in favour of predecessor-in-interest of the appellant since 1925 to 1946? 3. Whether the learned lower appellate Court is right in not discussing the entire oral as well as documentary evidence as required of it under law in view of the judgment of the Hon’ble Apex Court reported in 2000(5) SCC Page 652? 4. Whether the learned lower appellate Court is right in dismissing the suit of the appellant by misconstruing as well as misinterpreting the provisions of Section 104 of the H.P. Tenancy and Land Reforms Act? 5. Whether the learned lower appellate Court is right in not taking into consideration the law laid down by the Apex Court reported in 1969 P.L.J. Page 105 wherein it has been held that if an entry is changed without there being any order by the competent authority, that entry has to be ignored? 6. Whether the learned lower appellate court is right in not taking into consideration the document Ext. PW-7/A and PW-7/B and PZ?” 6. Mr. Ramakant Sharma, Sr. Advocate, on the basis of the substantial questions of law framed, has vehemently argued that the first appellate Court has misread and misinterpreted the oral as well as documentary evidence on record. The first appellate Court has not correctly applied the provisions of Section 104 of the H.P. Tenancy and Land Reforms Act. He lastly contended that the suit was within the limitation. On the other hand, Mr. K.D. Sood, Sr. Advocate has supported the judgment and decree passed by the learned first Appellate Court below. 7. The first appellate Court has not correctly applied the provisions of Section 104 of the H.P. Tenancy and Land Reforms Act. He lastly contended that the suit was within the limitation. On the other hand, Mr. K.D. Sood, Sr. Advocate has supported the judgment and decree passed by the learned first Appellate Court below. 7. I have heard learned counsel for the parties and have also gone through the judgments and records of the case carefully. 8. According to the record of rights from the year 1953-54, the suit land is shown in the ownership and possession of the defendants and their predecessor-in-interest. According to the jamabandi for the year 1983-84 Ext. P-2, Khasra Girdawari for the year 1985-89 Ext. P-5, Ext. DX-1 for the year 1983-84, Ext. DX-3 for the year 1961-62, Ext. DX-4 for the year 1953-54, the suit land has been shown in the co-ownership of the plaintiff and defendants. In revenue entries of jamabandi for the year 1925-26, Ext. PX-1 and in the year 1933-34, 1937-38 Ext. PX-3, suit land has been shown possession of predecessor-in-interest of plaintiff. In jamabandi for the year 1940-41 Ext. PX-4 and jamabandi for the year 1945-46 Ext. PX-5, Fonu has been shown in cultivation and possession of the suit land. 9. The plaintiff has filed suit in the year 1989. It was filed beyond limitation. From the year 1940, the plaintiff has not placed any tangible evidence on record to prove that he was shown as tenant in the revenue record from 1946 till 1989. The plaintiff has not led any evidence that his predecessor-in-interest or he was inducted as tenant at will by the defendants. Tenancy is a bilateral act. In order to prove tenancy, it is required to prove that the rent in any form was paid to the landlord in stipulated form. The plaintiff has also not proved as to how he became owner under the H.P. Tenancy and Land Reforms Act. There is a detailed procedure required to be complied with under the H.P. Tenancy and Land Reforms Act. The necessary orders are required to be passed by the Land Reforms Officer as stipulated under the H.P. Tenancy and Land Reforms Act. 10. Since few of the defendants were widows, the proprietary rights could not be conferred upon the plaintiff. There is a detailed procedure required to be complied with under the H.P. Tenancy and Land Reforms Act. The necessary orders are required to be passed by the Land Reforms Officer as stipulated under the H.P. Tenancy and Land Reforms Act. 10. Since few of the defendants were widows, the proprietary rights could not be conferred upon the plaintiff. The possession of the plaintiff has neither been shown in the jamabandi for the year 1945-46 nor in Khasra Girdawri. Ext. PW-7/A and Ext. PW-7/B statements of Milkhi Ram, Roop Singh and Jai Singh would not advance the cause of the plaintiff in view of the discussion made hereinabove. The substantial questions of law are answered accordingly. 11. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending application(s), if any.