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2015 DIGILAW 1424 (HP)

Harjesh Singh v. Roshan Lal

2015-10-07

RAJIV SHARMA

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JUDGMENT : Rajiv Sharma, J. This regular second appeal is directed against the judgment and decree of the learned Addl. District Judge-II, Kangra at Dharamshala, H.P. dated 22.4.2010, passed in Civil Appeal No. 22-D/XIII/08. 2. “Key facts” necessary for the adjudication of this regular second appeal are that the respondent-plaintiff (hereinafter referred to as the plaintiff), has instituted suit for declaration and consequential relief of permanent prohibitory injunction against the appellants-defendants (hereinafter referred to as the defendants). According to the plaintiff, he was recorded as non-occupancy tenant of land comprised in Khata No. 96, Khatauni No. 153, Kh. No. 432, area measuring 0-02-64 hectares, situated in Mohal Dar, Mouza Ghaniara, Tehsil Dharamshala, Distt. Kangra, H.P. However, in the settlement, the claim of the plaintiff was deleted as nonoccupancy tenant without any basis. The entry was changed without the knowledge of the plaintiff. The names of the defendants were recorded as non-occupancy tenants. They were trying to interfere with his possession. 3. The suit was contested by the defendants. According to them, the suit land is under the tenancy of the defendants prior to the settlement operation from 1970. The defendants were inducted as tenants at will by owner Kishan Chand. They are continuously coming in possession of the land. 4. The replication was filed by the plaintiff. The learned trial Court framed the issues on 5.8.2003. The suit was decreed by the learned trial Court vide judgment dated 22.2.2008. The defendants, feeling aggrieved, filed an appeal before the learned Addl. District Judge (II), Kangra at Dharamshala against the judgment and decree dated 22.2.2008. The learned Addl. District Judge (II), Kangra at Dharamshala, dismissed the same on 22.4.2010. Hence, this regular second appeal. 5. The regular second appeal was admitted on the following substantial questions of law on 31.10.2012: “1. whether both the courts below have misread, misinterpreted and misconstrued oral as well as documentary evidence of the parties especially the Ext. PW-1/A and oral evidence of PW-2 to PW-4 which has materially prejudiced the case of the appellants? 2. Whether the Civil Court has jurisdiction specialty where the long standing entries in favour of the defendants are recorded which is continuing even today? 3. Whether judgment and decree passed by the Courts below is vitiated being contrary to the provision of Section 112 of the HP Tenancy and Land Reforms Act, 1972?” 6. Mr. 2. Whether the Civil Court has jurisdiction specialty where the long standing entries in favour of the defendants are recorded which is continuing even today? 3. Whether judgment and decree passed by the Courts below is vitiated being contrary to the provision of Section 112 of the HP Tenancy and Land Reforms Act, 1972?” 6. Mr. Virender Singh Rathour, Advocate, on the basis of the substantial questions of law framed, has vehemently argued that both the courts below have misread and misinterpreted the oral as well as documentary evidence available on record. On the other hand, Mr. Neeraj Gupta, Advocate has supported the judgments and decrees passed by both the Courts below. 7. I have heard learned counsel for the parties and have also gone through the judgments and records of the case carefully. 8. The entry in the name of plaintiff was recorded as non-occupancy tenant in the jamabandi for the year 1967-68 Ext. P-3. In the column of ownership of the suit land, the name of Kishan Chand was recorded. However, in the Misal Haquiat Ext. P-2, the name of the defendants has been recorded as non-occupancy tenants during the settlement proceedings. The defendants have not placed any tangible evidence on record to establish how the settlement authorities have deleted the name of the plaintiff as non-occupancy tenant and entered the name of defendants. 9. PW-1 Roshan Lal has claimed himself to be owner-in-possession of the suit land. His statement was duly corroborated by owner of the land PW-2 Kishan Chand. According to him, the plaintiff was in possession of the suit land for the last 30-35 years as non-occupancy tenant. PW-3 Suresh Kumar has also deposed that the plaintiff was non-occupancy tenant in cultivatory possession of the suit land. 10. Defendant Hari Singh, in his cross-examination, has admitted that plaintiff was in possession of the suit land but Kishan Chand has got it resumed in the year 1969. However, there is no such contemporaneous record available on record. Defendants have not led any evidence to prove that the plaintiff was summoned by issuing notice in Form L.R.-VII. It cannot be said on the basis of Ext. DA that the defendants were inducted as tenants by Kishan Chand. There is a detailed procedure under which the entries can be changed. The defendants have miserably failed to prove that the tenancy was relinquished in accordance with law. It cannot be said on the basis of Ext. DA that the defendants were inducted as tenants by Kishan Chand. There is a detailed procedure under which the entries can be changed. The defendants have miserably failed to prove that the tenancy was relinquished in accordance with law. There is no written contract or agreement between the parties to create tenancy. Tenancy is a bilateral act. The defendants have not examined any witness to prove that they were in possession of the suit land except the bald assertion by the defendant as DW-1. Merely that the plaintiff was residing at a distance of 30-35 kms., would not prove that he was not in possession of the suit land. The Civil Court had the jurisdiction since the authorities have not acted in conformity with the fundamental principles of the procedure. It is reiterated that the revenue authorities have not complied with the provisions of the Act while effecting changes in favour of the defendants. The entries made in favour of the defendants were null and void. The entries have been incorporated without any lawful order or any contract inter se defendants and Kishan Chand owner. Both the Courts below have correctly appreciated the oral as well documentary evidence on record. 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.