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2015 DIGILAW 1645 (HP)

Kuber Raj v. Hari Singh

2015-11-05

RAJIV SHARMA

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JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 1.6.2005 rendered by the District Judge, Kangra at Dharamshala in Civil Appeal No. 76-D/XIII-2004. 2. "Key facts" necessary for the adjudication of this appeal are that the appellants-plaintiffs (hereinafter referred to as the "plaintiffs" for convenience sake) filed a suit against the respondent-defendant (hereinafter referred to as the "defendant" for convenience sake) for declaration as well as prohibitory injunction. According to the plaintiffs, land as detailed in the head note of the plaint, was in exclusive cultivatory possession of the plaintiffs earlier as tenants-at-will and thereafter as owners. Defendant has never come in possession in any capacity. He has no right, title or interest over the suit land. Revenue entries reflecting the defendant as owner to the extent of 1/2 share vide mutation are wrong and illegal. 3. Suit was contested by the defendant. On merits, it is stated that the defendant was owner in possession of the land to the extent of 1/2 share and the entries of record of right depicts correct position. Suit land was in cultivatory possession of Ram Saran, grand father of the plaintiffs and father of the defendant. Tenancy after the death of Ram Saran was inherited by Dulo Ram, father of the plaintiffs to the extent of 1/2 share and Hari Singh defendant to the extent of 1/2 share. The proprietary rights were conferred upon them vide mutation No. 101 dated 25.3.1985. 4. Replication was filed by the plaintiff. Issues were framed by the learned Civil Judge (Sr. Division), Kangra on 1.7.2002. He dismissed the suit on 5.7.2004. Plaintiffs preferred an appeal before the District Judge, Kangra at Dharamshala. He dismissed the same on 1.6.2005. Hence, the present appeal. It was admitted on 29.7.2005 on the following substantial questions of law: "1. Whether impugned judgments and decrees stand vitiated on account of misreading and mis-appreciation of pleadings and evidence more particularly provisions of section 2(17) and 2(18) of the Himachal Pradesh Tenancy and Land Reforms Act? 2. Whether impugned judgments and decrees stand vitiated in view of misreading and mis-appreciation of oral evidence more particularly statements of PW-1 to PW-4 and D.W. -1? 3. 2. Whether impugned judgments and decrees stand vitiated in view of misreading and mis-appreciation of oral evidence more particularly statements of PW-1 to PW-4 and D.W. -1? 3. Whether date of death of Ram Saran having not been brought on record, tenancy being claimed by defendant by succession could not have been held in his favour and contrary decision rendered by courts below, thus, stand vitiated the impugned judgments and decrees?" 5. Mr. Ajay Sharma, on the basis of the substantial questions of law, has vehemently argued that the provisions of Himachal Pradesh Tenancy and Land Reforms Act have not been correctly appreciated by the courts below. He has also contended that both the courts below have misread and mis-appreciated the oral as well as documentary evidence. He has faintly argued that date of death of Ram Saran has not been brought on record during the pendency of lis between the parties. 6. Mr. Atul Jhingan has supported the judgments and decrees passed by the court below. 7. I have heard the learned counsel for the parties and have gone through the records 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. PW-1 Ram Parshad Sharma has deposed that the suit land is about 11 kanals. It is cultivated by the plaintiffs. Plaintiffs were tenants under him in respect of some other land. Plaintiffs have become owners of the suit land under the Act and were not paying Galla Batai to him. In his cross-examination, he has deposed that he himself was the sole land owner of the suit land. He has also deposed that only Dulo Ram was cultivating the suit land. 10. PW-2 Jai Ram has deposed that he was familiar with the suit land. It was in possession of the plaintiffs. They have been cultivating the suit land from the time of their grand-father on Galla Batai. After the death of Ram Saran, only Dulo Ram was cultivating the suit land. Hari Singh never cultivated the suit land. Entries have been made wrongly in his name. He never resided in the village. In his cross-examination, he has stated that Ram Saran died in the year 1976 and Dulo Ram died later. Dulo Ram has cultivated the suit land 4-5 years after the death of Ram Saran. 11. Hari Singh never cultivated the suit land. Entries have been made wrongly in his name. He never resided in the village. In his cross-examination, he has stated that Ram Saran died in the year 1976 and Dulo Ram died later. Dulo Ram has cultivated the suit land 4-5 years after the death of Ram Saran. 11. PW-3 Partap Chand has deposed that he has seen the suit land. The suit land was in possession of the plaintiffs. In his cross-examination, he has deposed that he knew Ram Saran. He did not know who was cultivating the suit land when he used to be outside on employment. He has admitted that Ram Saran was cultivating the suit land. 12. PW-4 plaintiff No. 1 Kuber Raj has deposed that the suit land was in their possession since the time of their grand-father Ram Saran. They were residing in village Bhutehre whereas defendant was residing in village Sakoh. Mutation was wrongly entered in favour of defendant. Ram Saran died in the year 1976 and Dulo Ram died in the year 1977. He has admitted that Ram Saran was cultivating the suit land during his life time. Dulo Ram has cultivated the suit land alongwith Ram Saran. 13. Defendant has appeared as D.W. -1. According to him, the suit land was 11 kanals. Earlier, Amar Nath had filed a suit regarding the suit land against the parties. It was decided against the parties. Ram Saran had two sons, i.e. the defendant and Dulo Ram. Dulo Ram was father of plaintiffs. Parties have become owners of the suit land under the Act. He has never relinquished the possession of the same. Parties are in possession of the suit land in equal share. Though he has admitted that he was residing at village Sakoh which was about 3-4 KMs away from village Bhutehre. He retired from the Settlement Department. 14. D.W. -2 Rajinder Kumar has proved documents Ex. D-1 to Ex. D-3. Defendant has placed on record copy of Jamabandi for the year 1965-66 Ex. D-4, copy of missal Haquiat Bandobast Jadid Sani for the year 1973-74 Ex. D-5, copy of Jamabandi for the year 1985-86 Ex. D-6, copy of Jamabandi for the year 1990-91 Ex. D-7, copy of pedigree table Ex. D-8, copy of Khasra Girdawari Ex. D-9, copy of pedigree table Ex. D-10, copy of judgment in civil suit No. 120/91 Ex. D-4, copy of missal Haquiat Bandobast Jadid Sani for the year 1973-74 Ex. D-5, copy of Jamabandi for the year 1985-86 Ex. D-6, copy of Jamabandi for the year 1990-91 Ex. D-7, copy of pedigree table Ex. D-8, copy of Khasra Girdawari Ex. D-9, copy of pedigree table Ex. D-10, copy of judgment in civil suit No. 120/91 Ex. D-11 with decree sheet Ex. D-12, copy of Jamabandi for the year 1995-96 Ex. D-13 and copy of Missal Haquiat Bandobast Jadid for the year 1973-74 Ex. D-14. 15. According to Jamabandi for the year 1965-66 Ex. D-4 Ram Saran, grand-father of the plaintiffs and father of defendant Hari Singh was a non-occupancy tenant over the suit land. It is also proved from Missal Haquiat Bandobast Jadid Sani Ex. D-5 for the year 1973-74. The parties are successors of Ram Saran, non-occupancy tenant, as per pedigree table Ex. D-8. PW-2 Jai Ram, in his cross-examination, has admitted that when Ram Saran was alive, plaintiffs were cultivating the suit land on his behalf. PW-3 Partap Chand has also deposed, as discussed hereinabove, that Ram Saran was cultivating the suit land earlier. PW-4 Kuber Raj has deposed that Ram Saran died in the year 1976 and Duli Ram, father of the plaintiffs, died in the year 1977. Ram Saran was non-occupancy tenant over the suit land. He became owner of the same on the appointed date, i.e. 3.10.1975 when the Act came into force. The suit property, thus, was to be inherited equally by the parties. Ram Saran died in the year 1976 after the proprietary rights were already conferred upon him. The mutation is Ex. P-2 whereby the proprietary rights were conferred upon the parties to the extent of 1/2 share. The mutation was attested in favour of plaintiff No. 2 Prem Chand. He was present at the time of sanction of mutation, but he did not raise any objection. Plaintiffs have not filed any petition or appeal against mutation No. 101. Thus, the mutation has rightly been sanctioned. It is also not believable that after the death of Ram Saran only his one son Dulo Ram would have acquired the entire suit land as tenant. It has not come on record that defendant has ever surrendered or relinquished his tenancy in favour of Dulo Ram. Thus, the mutation has rightly been sanctioned. It is also not believable that after the death of Ram Saran only his one son Dulo Ram would have acquired the entire suit land as tenant. It has not come on record that defendant has ever surrendered or relinquished his tenancy in favour of Dulo Ram. Thus, after the death of Ram Saran, defendant inherited the land in equal share and became owner under the Himachal Pradesh Tenancy and Land Reforms Act. Merely that defendant was living in different village would not come in the way of his being granted proprietary rights. Plaintiffs have not taken the plea of section 2(17) and 2(18) of the Himachal Pradesh Tenancy and Land Reforms Act before the courts below. The substantial questions of law can only be based on the pleadings and the evidence led before the courts below. Both the courts below have correctly come to the conclusion that the factum of death of Ram Saran would have no bearing on the adjudication of this case since the proprietary rights were conferred upon him in the year 1975 and he died in the year 1976. 16. The courts below have correctly appreciated the oral as well as documentary evidence led by the parties and there is no need to interfere with the well reasoned judgments and decrees passed by both the courts below. 17. The substantial questions of law are answered accordingly. 18. In view of the analysis and discussion made hereinabove, there is no merit in the present appeal and the same is dismissed. Pending applications, if any, also stands disposed of. There shall, however, be no order as to costs.