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2015 DIGILAW 1708 (HP)

Ram Kumar v. Hukmi Devi

2015-11-20

RAJIV SHARMA

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JUDGMENT : Rajiv Sharma, J. This regular second appeal is directed against the judgment and decree of the learned District Judge, Kangra at Dharamshala, H.P., dated 10.7.2003, passed in Civil Appeal No. 72-J/XIII/2001. 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 for possession of land, as detailed in the plaint. According to him, he was owner along with other co-sharers of the suit land. However, during the settlement in the year 1981-82, the father of respondents-defendants (hereinafter referred to as the defendants), namely, Dharam Chand, got himself recorded as kabiz and thereafter took forcible possession of the suit land. After the death of Dharam Chand, the defendants are in possession of the suit land. They were requested to hand over the possession and admit the claim of the plaintiff, but they refused to do so. 3. The suit was contested by the defendants. They denied that the father of the defendants in the year 1981-82, manipulated the entry of possession and thereafter took forcible possession of the suit land. 4. The learned Sub Judge Ist Class, Jawali, Distt. Kangra, framed the issues on 27.3.1998. The suit was decreed vide judgment dated 8.3.2001. The defendants, feeling aggrieved, preferred an appeal against the judgment and decree dated 8.3.2001. The learned District Judge, Kangra at Dharamshala, allowed the same on 10.7.2003. Hence, this regular second appeal. 5. The regular second appeal was admitted 7.4.2004 on the following substantial questions of law: “1. Whether the lower Appellate court has wrongly ignored from consideration the material evidence i.e. the entries in the revenue records in favour of the plaintiff-appellant, showing owner to be in possession of the suit land consistently and also misreading the documentary evidence holding that the entries in favour of the defendants-respondents or their predecessor are not stray entries? 2. Whether the Lower Appellate Court has committed grave error of law in wrongly applying the principles of law to the entries in favour of the defendants-respondents showing them to be in possession which entries were without any basis, when it was a contrary situation? 2. Whether the Lower Appellate Court has committed grave error of law in wrongly applying the principles of law to the entries in favour of the defendants-respondents showing them to be in possession which entries were without any basis, when it was a contrary situation? Has not the Lower Appellate Court ignored the material evidence and the pedigree table which showed the correct parentage of the predecessor-in-interest of the defendants-respondents who was never a tenant recorded in the revenue record prior to 1981-82 which entries in the revenue records have not been proved to be having any lawful and legal basis? Are not such findings illegal, erroneous and perverse?” 6. Mr. Neeraj Gupta, Advocate, appearing on behalf of the appellant, on the basis of the substantial questions of law framed, has vehemently argued that there was misreading of the documentary evidence, more particularly, the revenue entries by the first Appellate Court. According to him, the forefathers of the defendants were never recorded as tenants in the revenue record prior to 1971-72 as per the pedigree table. 7. I have heard Mr. Neeraj Gupta, Advocate and have also gone through the judgments and records of the case carefully. 8. PW-1 Ram Kumar deposed that the defendants have forcibly taken possession in the month of February, 1982. Their possession was illegal. They were requested to hand over the possession but they refused to do so. 9. DW-1 Hans Raj deposed that he cultivated the suit land as tenant and before that their father was cultivating the same as tenant against Galla Batai. They have become owner of the land under the Tenancy Act. The plaintiff has never cultivated the suit land. The defendants were cultivating the suit land since their forefathers. He could not produce the receipt of Galla Batai. His father used to say that the owner used to take Galla and used to issue receipt against the same. He did not know when the settlement took place. 10. DW-2 Mangat Ram deposed that previously suit land was cultivated by their father and after his death, the defendants were cultivating the same as tenants. 11. DW-3 Milkhi Ram in his cross-examination has admitted that plaintiff Ram Kumar and Ram Swarup were the owners of the suit land. He also admitted that no document was prepared at the time of taking over the land for cultivation in agreement. 12. 11. DW-3 Milkhi Ram in his cross-examination has admitted that plaintiff Ram Kumar and Ram Swarup were the owners of the suit land. He also admitted that no document was prepared at the time of taking over the land for cultivation in agreement. 12. The learned District Judge has not correctly appreciated Ext. D-1, copy jamabandi for the year 1966-67. It is not borne out from this jamabandi that Dharam Chand was inducted as tenant. The stray entry for the first time has appeared in the Missal Haquiat for the year 1971-72 Ext. D- 2, whereby the name of Dharam Chand was shown, however, surprisingly enough, in the jamabandi for the year 1980-81 (Ext. P-2, and copy of jamabandi for the year 1990-91 (Ext. P-1), Dharam Chand has been shown to be merely in the possession of the suit land. He has not been shown to be the tenant. The copy of Jamabandi for the year 1977-78 Ext. P-3 also does not show either the defendants or their forefather in possession of the suit land. Dharam Chand has not been shown to be tenant against payment of Galla Batai. 13. There is only one stray entry in Ext. D-2 copy of jamabandi for the year 1971-72. However, there is no basis for recording the same. The stray entry could not be taken into consideration to prove that the defendants or their forefather were inducted as tenants and they have become owners after the coming into force of the H.P. Tenancy and Land Reforms Act. 14. DW-1 Hans Raj, though has stated that his father used to cultivate the land after paying Galla Batai, but the fact of the matter is that no receipt whatsoever, was produced. Similarly, DW-3 Milkhi Ram has admitted that plaintiff Ram Kumar and Ram Swarup were the owners of the suit land. He could not produce any writing whereby the land was handed over to the defendants for cultivation. 15. In Ext. D-1 name of the father of Dharam Chand has been shown as Baria but as per Ext. P-6 Naksha Shajra, the name of the father of Dharam Chand has been recorded as Nathu. The defendants have failed to prove that they were inducted as tenants and have become owners of the suit land under the H.P. Tenancy and Land Reforms Act. P-6 Naksha Shajra, the name of the father of Dharam Chand has been recorded as Nathu. The defendants have failed to prove that they were inducted as tenants and have become owners of the suit land under the H.P. Tenancy and Land Reforms Act. There is no document placed on record to prove how the stray entry, for the first time, in Ext. D-2 copy of jamabandi for the year 1971-72 was incorporated showing Dharam Chand as tenant. The substantial questions of law are answered accordingly. 16. Accordingly, the appeal is allowed. Judgment and decree of the learned first appellate Court dated 10.7.2003 is set aside and judgment and decree of the learned trial Court dated 8.3.2001 is restored.