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2015 DIGILAW 96 (HP)

Chaman Lal v. State of Himachal Pradesh

2015-02-23

RAJIV SHARMA

body2015
JUDGMENT Rajiv Sharma, J. 1. This regular second appeal is directed against the judgment and decree of the learned Addl. District Judge, Kullu, H.P. dated 27.9.2014, passed in Civil Appeal No. 27 of 2014. 2. Key facts, necessary for the adjudication of this regular second appeal are that the appellants-plaintiffs (hereinafter referred to as the plaintiffs) have instituted suit for declaration and injunction against the respondents-defendants (hereinafter referred to as the defendants). According to the plaintiffs, their father, namely, Beli Ram was exclusive owner-in-possession of land measuring 1-0-0 bighas comprised under Khasra No. 3426/2289, Khata Khatauni No. 93/176 situated in Phati Shoshan, Kothi Kanawar, Tehsil and District Kullu, H.P. According to them, their father died in the year 2002 and they inherited the suit land in equal shares. They are joint owners-in-possession of the suit land. Defendant No. 3 was neither inducted as tenant-at-will over the suit land by the predecessor-in-interest of the plaintiffs nor handed over the possession of the same to the defendant No. 3 or any other person and the ownership and possession of the suit land remained with the father of the plaintiffs till his demise. The plaintiffs are in peaceful ownership and possession of the suit land and as such the revenue entries showing defendant No. 3 as tenant-at-will are wrong, illegal and contrary to the factual position. It is in these circumstances, the suit was filed. 3. The suit was contested by the defendants by filing the written statement. According to them, the land comprised in Khasra No. 3426/2289, Khata khatauni No. 93/176, is recorded in the revenue record in the name of the Forest Department as tenant-at-will prior to the year 1942-43. The building on the Kh. No. at Kasol with compound and quarters was constructed by spending huge amount and this fact was duly in the knowledge of the then owner of the suit land. The Government has transferred the constructed building to the Tourism Department on 1.11.1972. The Revenue Department has not carried out the correct revenue entries pertaining to the suit land as per the factual position. The plaintiffs are neither owner nor in physical possession of the suit land and it is the H.P. Tourism Development Corporation, who is in physical possession of the suit land. 4. The issues were framed by the learned Civil Judge, (Senior Division), Lahaul & Spiti at Kullu on 29.11.2011. The plaintiffs are neither owner nor in physical possession of the suit land and it is the H.P. Tourism Development Corporation, who is in physical possession of the suit land. 4. The issues were framed by the learned Civil Judge, (Senior Division), Lahaul & Spiti at Kullu on 29.11.2011. The learned Civil Judge, (Senior Division), Lahaul & Spiti at Kullu dismissed the suit on 27.11.2013. The appellants-plaintiffs, feeling aggrieved by the judgment and decree dated 27.11.2013, filed an appeal before the learned Addl. District Judge, Kullu. The learned Addl. District Judge, Kullu, dismissed the same on 27.9.2014. Hence, this regular second appeal. 5. Mr. Rajan Kohal, Advocate, on the basis of the substantial questions of law framed, has vehemently argued that both the Courts below have not correctly appreciated the oral as well as documentary evidence, more particularly, Ext. DW-1/B. According to him, the plaintiffs have duly proved that the revenue entries showing defendant No. 3 as tenant-at-will were wrong and illegal. On the other hand, Mr. R.P. Singh, learned Assistant Advocate General, has supported the judgments and decrees passed by both the Courts below. 6. I have heard Mr. Rajan Kahol, Advocate, for the appellant, Mr. R.P. Singh, learned Assistant Advocate General for the respondent-State and gone through the records of the case carefully. 7. Since the substantial questions of law are interconnected, these were taken up together for discussion to avoid repetition of evidence. 8. PW-1 Chaman Lal, has led his evidence by filing affidavit Ext. PW-1/A. According to him, the suit land was earlier owned and possessed by their father and defendants started interfering over the suit land. The entries coming in the name of defendant No. 3 as tenant-at-will were wrong, illegal and void. He has shown his ignorance that the suit land has been recorded in the revenue record in the name of the Forest Department as tenant-at-will since 1942-43. He denied that the suit property was in the possession of the defendants. According to him, the shed was constructed over the suit land by him. He has shown his ignorance that vide notification No. 5-107/72/TD (Sect.), the suit property has been transferred to the Tourism Department and the Department was in possession of the suit property. He denied that the suit property was in the possession of the defendants. According to him, the shed was constructed over the suit land by him. He has shown his ignorance that vide notification No. 5-107/72/TD (Sect.), the suit property has been transferred to the Tourism Department and the Department was in possession of the suit property. He denied the suggestion that even prior to 1965-66, the Forest Department has constructed the compound and quarters over the suit land though he stated that his date of birth is 5.5.1975. 9. PW-2 Neel Chand has also led his evidence by filing affidavit Ext. PW-2/A. According to him, defendant No. 3 was never inducted as tenant over the suit land. In his cross-examination he deposed that he did not know as to who was the owner of the suit land as per revenue record. He denied that earlier the suit land was in possession of the Forest Department and at present it is in the possession of the Tourism Department. He feigned ignorance if land comprised in Kh. No. 3426/2289 has been transferred in the name of Tourism Department from the Forest Department. 10. DW-1 Tejaswi Ram has tendered/led his evidence by filing affidavit Ext. DW-1/A. He testified that the Forest Department had constructed the compound and quarters by spending huge amount prior to 1965-66 over the land comprising in Kh. No. 3426/2289 and after 1972, the same was transferred to the Department of Tourism. The plaintiffs were neither owner nor were in possession of the suit land. He admitted in his cross examination that after 1972, defendants No. 1 to 3 are not in possession of the suit land. He denied that prior to the year 1972, the Forest Department never remained in possession. 11. DW-2 Pratap Chand Negi has also led his evidence by filing affidavit Ext. DW-2/A. According to him, the suit land was earlier in possession of the Forest Department. It was transferred to Tourism Department. The tourist huts are existing over the suit land. The Forest Department had constructed building, compound and quarters which were subsequently transferred to the Tourism Department. He has also proved registration certificate Ext. DW-2/B and renewal certificate Ext. DW-2/C. He also denied that these were forged documents. 12. The plaintiffs have placed on record Ext. PW-1/B, copy of jamabandi for the year 2000-01, Ext. PW-1/C, postal receipt, Ext. The Forest Department had constructed building, compound and quarters which were subsequently transferred to the Tourism Department. He has also proved registration certificate Ext. DW-2/B and renewal certificate Ext. DW-2/C. He also denied that these were forged documents. 12. The plaintiffs have placed on record Ext. PW-1/B, copy of jamabandi for the year 2000-01, Ext. PW-1/C, postal receipt, Ext. PW-1/D, copy of legal notice and Ext. PW-1/E, reply. Defendants have placed on record Ext. DW-1/B, Ext. DW-2/B copy of certificate of registration, DW-2/C copy of registration certificate, Ext. DA copy of jamabandi for the year 1942- 43 Urdu version and Hindi version Ext. DB, Misal Haquiat Ext. DC for the year 1948-49, Hindi version. Defendants have also placed on record Ext. DD-1 and Ext. DD-2 copies of Misal Haquiat for the year 1948-49, copy of jamabandies for the year 1970-71 Ext. DE, copy of jamabandi for the year 1975-76 Ext. DF, copy of jamabandi for the year 1980-81 Ext. DG, copy of jamabandi for the year 1985-86 Ext. DH, copy of jamabandi for the year 1990-91 Ext. DJ, copy of jamabandi for the year 1995-96 Ext. DK, copy of jamabandi for the year 2000-01 Ext. DL, copy of jamabandi for the year 2005-06 Ext. DM and Ext. DN copy of Khasra Girdawari. 13. It is evident from the revenue record placed on record by both the parties that even in the year 1942-43, the Forest Department was in the possession of the suit property as per Ext. DA, copy of jamabandi for the year 1942-43 and translated copy which is Ext. DB. The possession of the Forest Department is also duly established on the basis of the copy of Missal Haquiyat for the year 1948-49 and Ext. DD-1. Its translation is Ext. DC. According to these entries, new Khasra No. 2289 was carved out in lieu of old Kh. No. 2422 and the same was recorded in the possession of Forest Department. Even according to Ext. DE copy of jamabandi for the year 1970- 71, Ext. DF copy of jamabandi for the year 1975-76, Ext. DG copy of jamabandi for the year 1980-81, Ext. DH copy of jamabandi for the year 1985-86, Ext. DJ copy of jamabandi for the year 1990-91, Ext. DK copy of jamabandi for the year 1995-96 and Ext. Even according to Ext. DE copy of jamabandi for the year 1970- 71, Ext. DF copy of jamabandi for the year 1975-76, Ext. DG copy of jamabandi for the year 1980-81, Ext. DH copy of jamabandi for the year 1985-86, Ext. DJ copy of jamabandi for the year 1990-91, Ext. DK copy of jamabandi for the year 1995-96 and Ext. DA copy of jamabandi for the year 1942-43, the Forest Department was recorded in possession of the suit property. It is duly established from these entries that the suit land was recorded in the name of Chet Ram but the land was in the possession of the Forest Department. Even in the jamabandi for the year 2000-01 Ext. DL, the Forest Department is recorded in possession of the suit land in the capacity of “Tabe Marzi”. According to the jamabandi for the year 2005-06 Ext. DM and Khasra Girdawari Ext. DN, six biswas of land is Beed and 10 biswas of land is ‘Banjar Kadim’. According to these entries, the name of defendant No. 3 has been coming in possession since 1942-43. The construction of huts by the defendants has been proved by DW-1 Tejaswi Ram and DW-2 Partap Chand. The land was transferred in the name of H.P. Tourism Development Corporation vide Notification No. 5-107/72-TD (Sectt.) vide DW-1/B. The defendants have also proved the registration and renewal of licenses vide Ext. DW-2/B and Ext. DW-2/C. It is also duly established from Ext. DW-2/C and Ext. DO that even the huts also existed in the year 1965-66. The plaintiffs have not led any tangible evidence to establish that they have constructed the huts over the suit land. The plaintiffs have not challenged these entries coming in existence for the last 70 years. The plaintiffs have thus failed to prove on record that the entries coming in the revenue record in the name of defendants No. 3 & 4 are wrong, illegal and void. The substantial questions of law are answered accordingly. 14. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending applications, if any.