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2015 DIGILAW 1425 (HP)

Karam Chand (dead through LRs) v. Vijay Kumar

2015-10-07

RAJIV SHARMA

body2015
JUDGMENT : Rajiv Sharma, J. This regular second appeal is directed against the judgment and decree of the learned Addl. District Judge, (FTC) Kangra at Dharamshala, H.P. dated 29.12.2004, passed in Civil Appeal No. 45-D/04/01. Appellant Karam Chand is reported to have expired. However, his estate is duly represented by his legal representatives, who are already on record. 2. “Key facts” necessary for the adjudication of this regular second appeal are that the respondents-plaintiffs (hereinafter referred to as the plaintiffs), have instituted suit for declaration to the effect that they were owners-in-possession of the land comprised in Khata No. 80, Khatauni No. 154, Kh. No. 429, measuring 0-02-40 hectares, situated in Mohal Khikli Dar, Mauza Ghaniara, Tehsil Dharamshala, Distt. Kangra, H.P., as per jamabandi for the year 1990-91, with consequential relief of permanent injunction restraining the appellants-defendants (hereinafter referred to as the defendants) from interfering in the suit land. The land was purchased by the plaintiffs from one Dulo Ram vide registered sale deed dated 24.9.1968 and possession was also delivered to the plaintiffs by the owner. The plaintiffs became owners-in-possession of the suit land. Mutation No. 654 dated 20.1.1969 was also sanctioned on the basis of the registered sale deed. Earlier one Roshan Lal was the tenant at will under Sh. Dulo Ram and Sh. Roshan Lal relinquished his tenancy rights in favour of Dulo Ram and as such Dulo Ram came into possession of the suit land. The settlement took place in the year 1975-76. However, during the settlement operations, the suit land was recorded in possession of appellants-defendants (hereinafter referred to as the defendants) without any order from the competent authority. The defendants got themselves recorded in possession as tenant at will on payment of rent under the plaintiffs in connivance with the settlement staff. The defendants were never inducted as tenants by Sh. Dulo Ram nor there was any agreement to that effect. No rent was ever paid by the defendants to the plaintiffs nor the defendants were in possession of the suit land. 3. The suit was contested by the defendants. According to them, the plaintiffs had nothing to do with the possession of the suit land and the defendants were in possession of the suit land from the time of their forefathers and prior to the settlement. 3. The suit was contested by the defendants. According to them, the plaintiffs had nothing to do with the possession of the suit land and the defendants were in possession of the suit land from the time of their forefathers and prior to the settlement. The settlement took place in the area in the presence of the parties and the revenue entries were made according to the spot position. The revenue entries were correct. 4. The replication was filed by the plaintiffs. The learned trial Court framed the issues on 15.1.2000. The suit was decreed by the learned trial Court vide judgment dated 31.3.2001 to the extent that the plaintiffs were declared owners-in-possession of the land as per the details given in the plaint as per jamabandi for the year 1990-91. The defendants, feeling aggrieved, filed an appeal before the learned Addl. District Judge (FTC), Kangra at Dharamshala against the judgment and decree dated 31.3.2001. The learned Addl. District Judge (FTC), Kangra at Dharamshala, dismissed the same on 29.12.2004. Hence, this regular second appeal. 5. The regular second appeal was admitted on 16.9.2005. However, the substantial questions of law were not framed. Now, the RSA would be deemed to have been admitted on substantial questions of law No. 1 & 2, which read as follows and the parties were put to notice: “1. Whether the judgments passed by the Courts below are vitiated on the ground that the jurisdiction of Civil Court is barred under the H.P. Land Revenue Act in the facts and circumstances of the case? 2. Whether the suit filed by the plaintiffs/respondents was barred by limitation and as such the judgment is vitiated on this account?” 6. Mr. Virender Singh Rathour, Advocate, on the basis of the substantial questions of law framed, has vehemently argued that the Civil Court had no jurisdiction in the matter. He then contended that the suit was barred by limitation. 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. PW-1 Vijay Kumar is one of the plaintiffs. He deposed that the suit land was purchased on 24.9.1968 vide registered sale deed Ext. 7. I have heard learned counsel for the parties and have also gone through the judgments and records of the case carefully. 8. PW-1 Vijay Kumar is one of the plaintiffs. He deposed that the suit land was purchased on 24.9.1968 vide registered sale deed Ext. PW-1/A. The possession was also delivered on the spot and mutation was also sanctioned vide Ext. PW-1/B. Sh. Roshan Lal was tenant of this land before the purchase of the land. Roshan Lal had relinquished the tenancy rights and delivered the possession to the plaintiffs. The defendants got their entries effected during settlement operation behind their back. The defendants were never inducted as tenants over the suit land. PW-2 C.R.Sharma is one of the marginal witnesses of the registered sale deed Ext. PW-1/A. PW-3 Roshan Lal deposed that he was tenant of the suit land before the purchase of land by the plaintiffs. According to him, he had relinquished the tenancy rights about 30-32 years ago in favour of the owners and the possession was also delivered to them. He has admitted that no writing was prepared regarding the relinquishment of the tenancy. PW-4 Hari Ram deposed that he has not seen the defendants over the suit land. The suit land was in possession of the plaintiffs. 9. Defendant No. 2 has appeared as DW-1. According to him, the land was about 12 marlas. He was tenant over the same. The land belongs to Kishan Chand and now it belongs to Vijay and Ajay and they are cultivating the suit land since 1970 and prior to that, his father was cultivating the same. He died in the year 1975. They are coming in cultivation. Settlement also took place in the area. DW-2 Ramesh Chand deposed that he knew the parties. The disputed land is about 17 kanals which was cultivated by Karam Chand and after that the defendants are cultivating the same. In his cross-examination, he deposed that he was working as Daily Wager in PWD. He was residing at Dharamshala. 10. The plaintiffs have proved copy of jamabandi for the year 1991- 92 Ext. P-1. The plaintiffs, according to Ext. P-1 have been shown as owners of the suit land and the defendants have been shown as non-occupancy tenants of the suit land on payment of rent. The plaintiffs have also proved copy of jamabandi for the year 1967-68 Ext. P-2. The plaintiffs have proved copy of jamabandi for the year 1991- 92 Ext. P-1. The plaintiffs, according to Ext. P-1 have been shown as owners of the suit land and the defendants have been shown as non-occupancy tenants of the suit land on payment of rent. The plaintiffs have also proved copy of jamabandi for the year 1967-68 Ext. P-2. According to Ext. P-2, jamabandi Dulo Ram and others have been shown as owners of the suit land and Roshan Lal has been shown as tenant of the suit land. In the column of remarks, there is an entry that vide mutation No. 654, Dulo Ram had sold the suit land in favour of Vijay Kumar etc. The plaintiffs have also proved copy of missal haquiat bandobast jaded for the year 1975-76 vide Ext. P-3 wherein the plaintiffs have been shown as owners of the suit land and the defendants and others have been shown as non-occupancy tenants. In Ext. D-1 copy of missal haquiat bandobast jaded, plaintiffs have been shown as co-owners of the suit land and defendants have been shown in possession of the suit land as non-occupancy tenants. 11. It is evident from the copy of jamabandi for the year 1967-68 Ext. P-2 that Dulo Ram and others have been shown as owners and Roshan Lal as non-occupancy tenants. Roshan Lal in his statement, while appearing as PW-3 has admitted that he relinquished his tenancy rights in favour of Dulo Ram and others. The possession was also given up by him. 12. The copy of the sale deed is Ext. PW-1/A and copy of mutation is Ext. PW-1/B. It is also stated in mutation Ext. PW-1/B that the suit land has been sold by Dulo Ram in favour of the plaintiffs. The possession was also delivered. The change of entry was only during the settlement operation. There is no order of any competent Officer/Authority on record for changing the entries in favour of the defendants. There is no rent receipt or any other documentary evidence regarding payment of rent by the defendants to the plaintiffs. The defendants have failed to prove as to whether any notice was issued to the plaintiffs before the change was made during the settlement proceedings. The detailed procedure is laid down for effecting changes in the revenue entries and in the present case that has not been followed. The defendants have failed to prove as to whether any notice was issued to the plaintiffs before the change was made during the settlement proceedings. The detailed procedure is laid down for effecting changes in the revenue entries and in the present case that has not been followed. Since the entries have been changed in violation of principles of natural justice and without following the due procedure of law, the Civil Court had the jurisdiction to try and decide the lis between the parties. 13. Mr. V.S. Rathour, Advocate has also vehemently argued that the suit was barred by limitation. The learned trial Court has framed a specific issue qua limitation on 15.1.2000 but the issue was not pressed during the course of the arguments by the learned Advocate appearing on behalf of the defendants before the trial Court. 14. The defendants have also not raised the issue of ouster of jurisdiction of Civil Court in the matter in the grounds of appeal while assailing the judgment and decree dated 31.3.2001 before the learned Addl. District Judge (FTC), Kangra at Dharamshala. Thus, the defendants are also precluded from raising this question before this Court. 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.