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2015 DIGILAW 1757 (HP)

Kanshi Ram v. Sarwan Ram Alias Sarwan Singh

2015-12-01

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. This regular second appeal has been preferred against the judgment and decree passed by the learned District Judge, Hamirpur, on 04.12.2001, whereby the judgment and decree passed by the learned trial Court restraining the defendant/respondent (hereinafter referred to as the respondent) from causing any interference in the land bearing Khasra No. 141/80, measuring 1 Kanal - 4 Marlas was ordered to be set aside and the cross objections filed by the plaintiffs/appellants (hereinafter referred to as the appellants) were ordered to be dismissed. 2. The facts, in brief, may be noticed. 3. One Prem Dass, predecessor-in-interest, of the appellants had alleged in the plaint that he was tenant-at-will over the suit land comprised in Khata No. 32 min, Khatauni No. 32 min, Khasra No. 100 (whose old Khasra Nos. were 82, 141/1 as depicted in the copy of jamabandi for the year 1910-11/1914-15, Khasra No. 80, measuring 11 Kanals - 3 Marlas) measuring 4 Kanals-16 Marlas as depicted in the copy of jamabandi Misal Haqiyat Istemal 1990-91, situated in Village Dmoi, Tappa-Bamson, Tehsil Bhoranj, District Hamirpur, H.P. on payment of rent to the previous owner. It was alleged that prior to Shri Prem Dass, his father and grand father, Shri Bhura Ram and Sh. Buta Ram, were tenant-at-will on payment of rent, but after operation of law, Shri Prem Dass had become owner of the suit land. It was further alleged that the revenue entries are absolutely wrong and contrary to the factual position and the same are not binding upon plaintiff. The predecessor-in-interest of the appellants had moved an application for making the record according to the factual position, but the same was not corrected. It was also alleged that Prem Dass had filed a petition under Section 54 of the H.P. Consolidation Act before the Director of Consolidation and the same was stated to be pending. The respondent has got no right, title or interest over the suit land, but on the basis of wrong revenue entries, the respondent is trying to take forcible possession of the suit land and on 04.04.1992 the respondent threatened to forcibly cut the crop and to dispossess the appellants from the suit land. It was further alleged that the appellants requested the respondent to desist from his illegal designs, but to no avail. It was further alleged that the appellants requested the respondent to desist from his illegal designs, but to no avail. Hence, the suit was filed for permanent prohibitory injunction restraining the respondent from interfering in any manner, changing the nature of the suit land and dispossessing the appellants from the suit land in any manner. 4. The respondent contested the suit by filing written statement wherein various preliminary objections qua maintainability, jurisdiction, cause of action, locus standi and estoppel were raised. An objection was also raised to the effect that the suit is liable to be stayed due to pendency of revision petition under Section 54 of the H.P. Consolidation of Holdings act, 1971. 5. On merits, the respondent averred that the predecessor-in-interest of the appellants was neither the owner nor in possession over the suit land and the Consolidation Authorities had rightly rejected the application for correction of revenue entries as Prem Dass was not found in possession over the suit land on the spot. However, the respondent has shown ignorance regarding the institution of the revision petition. It was also averred that the respondent is in cultivating possession of the suit land. Neither the suit has been properly valued for the purpose of court fee and jurisdiction nor have the appellants got any cause of action to file the suit. 6. Appellants filed replication whereby they reiterated and reaffirmed the averments made in the plaint and denied the averments made by the respondent in the written statement. 7. On the pleadings of the parties, the following issues were framed by the learned trial Court on 19.11.1992:- 1. Whether the suit is not maintainable in the present form as alleged? OPD. 2. Whether this Court has no jurisdiction to try this suit? OPD. 3. Whether the plaintiff has no cause of action? OPD. 4. Whether the plaintiff has no locus-standi to file the suit ? OPD. 5. Whether the plaintiff is estopped by his act and conduct from filing this suit? OPD. 6. Whether the suit is liable to be stayed as alleged? OPD (objected to). 7. Whether the defendant is entitled for special costs? OPD. 8. Whether the plaintiff is entitled to the relief of injunction as prayed for? OPP. 9. Relief. 8. After recording the evidence and evaluating the same, the learned trial Court on 23.05.1997 partly decreed the suit filed by the appellants. OPD (objected to). 7. Whether the defendant is entitled for special costs? OPD. 8. Whether the plaintiff is entitled to the relief of injunction as prayed for? OPP. 9. Relief. 8. After recording the evidence and evaluating the same, the learned trial Court on 23.05.1997 partly decreed the suit filed by the appellants. The appeal preferred by the respondent against the judgment and decree passed by the learned trial Court was allowed on 04.12.2001 and the suit of the appellants was dismissed and cross-objections were also dismissed. Aggrieved by the judgment and decree passed by the learned lower appellate Court, the appellants have filed the present appeal and on 22.11.2002 this Court admitted the same on the following substantial questions of law:- "1. Whether the impugned judgment and decree is the result of complete misreading, misinterpretation and as well as misrepresentation of Revenue Entries Ext. PX/D jamabandi for the year 1955-56 as well as Ext. PX/C Jamabandi for the year 1943-44? 2. Whether the impugned judgment and decree is result of non-consideration of Section 115 of the H.P. Tenancy and Land Reforms Act, 1972? 3. Whether the learned Lower Appellate Court is right in not granting the injunction specifically when the appellants have been found in possession? 4. Whether the impugned judgment and decree is the result of non-consideration of Ext. PW-4/A, Ext. PB. PC and Ext. PX/B in its right perspective?" I have heard the learned counsel for the parties and have gone through the records of the case. 9. Since, all the aforesaid questions are somehow interconnected and inter-related, they are disposed of by common reasoning. 10. Insofar as the claim regarding 4 Kanals and 16 Marlas is concerned, both the learned Courts below have concurrently found against the appellants and I find no reason to disagree with the said findings. The copy of Misal Haqiyat Bandobast 1910-11/1914-15 Ex. PB shows that the land comprised in Khasra No. 80 (whose old Khasra No. 21 min) is measuring 11 Kanals and 3 Marlas and was under the cultivating possession of Shri Bhura son of Shri Sidhu as non-occupancy tenant under Shri Narpat and Shri Bajira on payment of Batai-Nisaf-Galla-Bila-Bhusha-Bila-Kharcha Kamiya. The next jamabandi is Ex. PB shows that the land comprised in Khasra No. 80 (whose old Khasra No. 21 min) is measuring 11 Kanals and 3 Marlas and was under the cultivating possession of Shri Bhura son of Shri Sidhu as non-occupancy tenant under Shri Narpat and Shri Bajira on payment of Batai-Nisaf-Galla-Bila-Bhusha-Bila-Kharcha Kamiya. The next jamabandi is Ex. PX/B for the year 1931-32 which shows Shri Bhura son of Shri Sidhu to be tenant under Shri Narpat and Smt. Sundru wife of Shri Bajira in respect of land comprised in Khasra No. 80 on payment of Galla-Batai. Ex. PX/C is the jamabandi for the year 1943-44 which shows Shri Dass son of Shri Bhuru to be non occupancy tenant under Shri Basant Ram, Shri Sher Singh and Shri Munshi Ram, sons of Shri Narpat in respect of land comprised in Khasra No. 80 on payment of Galla-Batai. Ex. PX/D is the jamabandi for the year 1955-56 which also shows Shri Dass and Shri Premu sons of Shri Bhuru to be non occupancy tenants under Shri Suhnu and Shri Durga sons of Shri Sukh Dayal in respect of land comprised in Khasra No. 141/80 measuring 1 Kanals 4 Marlas. 11. Insofar as the suit land measuring 4 Kanals and 16 Marlas as reflected in Ex. D-3 is concerned, it would be evident that Khasra No. 100 has been carved out from three old Khasra Nos.82, 141/80, 143/83. No doubt, the predecessor-in-interest of the appellants though have been tenants over the land comprised in Khasra No. 80, but there is no entry of the said tenancy in their favour qua the land comprised in old Khasra Nos.82, 83 and thus the appellants have miserably failed to establish their or theirs predecessor-in-interest tenancy over this land. 12. Now, insofar as the tenancy of the appellants over 1 Kanal 4 Marlas is concerned, the learned trial Court relied upon the jamabandi for the year 1955-56 Ex. D-4 to conclude that once Shri Dass and Shri Premu, the predecessors-in-interest, of the appellants had been shown as tenants over this land comprised in Khasra No. 141/80, measuring 1 Kanal 4 Marlas which was the same land out of which present Khasra No. 100 had been carved out, they were deemed to be continued in possession in absence of any order of eviction having been proved by the respondent. However, the learned lower Appellate Court discarded the aforesaid entry on the pretext that the same was a stray entry. 13. I am afraid that I cannot persuade myself to agree with the findings recorded by the learned lower Appellate Court, particularly, when it is duly proved on record that Khasra No. 100 had been carved out from three old Khasra Nos. 82, 141/80 and 143/83 and it is not in dispute that the tenancy of the predecessor-in-interest of the appellants existed in the revenue records qua land comprised in Khasra No. 80 as it would be evident from Ex. PC, PX/B, PX/C and PX/D etc. Therefore, contrary findings recorded by the learned lower Appellate Court in teeth of this overwhelming evidence are liable to be set aside. The questions of law are accordingly answered. 14. In view of the aforesaid discussion, the appeal is partly allowed. The judgment and decree passed by the learned lower Appellate Court qua 4 Kanals 16 Marlas comprised in Khata No. 32 min, Khatauni No. 32 min, Khasra No. 100, measuring 4 Kanals 16 Marlas is maintained. However, insofar as Khasra No. 141/80, measuring 1 Kanal 4 Marlas is concerned, the same is set aside and the judgment and decree passed by the learned trial Court is upheld. In other words, the judgment and decree passed by the learned trial Court is affirmed. 15. Parties are left to bear their own costs.