JUDGMENT : P.S. Rana, J. Present appeal is filed under section 100 of Code of Civil Procedure 1908 against the judgment and decree dated 28.2.2005 passed in civil appeal No. 4-N/13 of 2003 title Bhanga Ram Vs. Gurdas and another whereby learned Additional District Judge Sirmour at Nahan (HP) affirmed judgment and decree passed by learned Trial Court in civil suit No. 10/1 of 2001 title Gurdas and another Vs. Bhanga Ram decided on 28.11.2002. Brief facts of the case: 2. Plaintiffs Gurdas and Dev Raj filed suit for declaration to the effect that plaintiffs are non-occupancy tenants in possession on the basis of inheritance over suit land comprised in khata No. 59 min khatauni No. 94 khasra No. 228 measuring 7-13 bigha and khasra No. 266/229 min measuring 3-18 bighas kitas 2 total measuring 11-11 bigha situated in mauza Fatehpur Tehsil Paonta Sahib District Sirmour HP and mutation No.473 dated 21.4.1995 in favour of defendant Sh Bhanga Ram is illegal and void. It is pleaded that Johli Ram son of Sankar was non-occupancy tenant of suit land under land owner Ram Prasad son of Mushi Ram. It is further pleaded that plaintiffs constituted joint Hindu family with their father and plaintiffs used to help their father in cultivation of suit land. It is further pleaded that Johli Ram father of plaintiffs died on 22.11.1993 in village Fatehpur Tehsil Paonta Sahib HP. It is further pleaded that plaintiffs are only legal heirs of Johli Ram and plaintiffs inherited tenancy rights under section 45 of HP Tenancy and Land Reforms Act 1972. It is further pleaded that plaintiffs are cultivating suit land and are paying rent. It is further pleaded that plaintiffs have also installed tube well in suit land for irrigating suit land and spent huge amount. It is further pleaded that on dated 15.1.2001 defendant entered in the suit land with intention to destroy crop. It is further pleaded that when plaintiffs requested defendant not to interfere in the possession of plaintiffs then defendant threatened that he would take forcible possession of suit land. It is further pleaded that defendant also claimed himself to be joint co-sharer with the plaintiffs in equal shares in suit land. It is further pleaded that mutation No. 473 was sanctioned qua inheritance of Johli Ram on the basis of Will dated 9.11.1989 registered in the office of Sub Registrar Paonta Sahib. It is further pleaded that defendant also claimed himself to be joint co-sharer with the plaintiffs in equal shares in suit land. It is further pleaded that mutation No. 473 was sanctioned qua inheritance of Johli Ram on the basis of Will dated 9.11.1989 registered in the office of Sub Registrar Paonta Sahib. It is further pleaded that late Johli Ram father of plaintiffs was non-occupancy tenant of suit land and he has no legal right to bequeath tenancy rights in favour of defendant. It is further pleaded that Johli Ram did not execute any Will on dated 9.11.1989 in favour of defendant. It is further pleaded that plaintiffs are in settled possession of suit land. It is further pleaded that plaintiffs requested defendant to desist from his illegal acts but defendant did not accept the request of plaintiffs. It is further pleaded that cause of action occurred in favour of plaintiffs when defendant interfered in the possession of plaintiffs and threatened to take forcible possession of suit land from plaintiffs. Prayer for decree of suit as mentioned in relief clause of plaint sought. 3. Per contra written statement filed on behalf of defendant pleaded therein that suit of the plaintiffs is not maintainable and plaintiffs have filed present suit without any cause of action. It is further pleaded that plaintiffs are estopped by their acts and conduct for filing present suit. It is further pleaded that suit is barred by limitation. It is further pleaded that defendant used to help Johli Ram in agricultural work. It is pleaded that Johli Ram died on 22.11.1993 in village Fatehpur. It is further pleaded that tube well was installed by late Johli Ram himself. It is further pleaded that father of defendant namely Duni Chand and Johli Ram were real brothers. It is pleaded that Duni Chand died. It is pleaded that Smt. Maro Devi was widow of Duni Chand. It is pleaded that after death of Duni Chand his widow Maro Devi remarried with Johli Ram by way of customary marriage. It is further pleaded that defendant Sh Bhanga Ram and Smt. Geeta Devi born from the loin of Duni Chand and Maro Devi. It is further pleaded that after the death of Duni Chand his widow Smt. Maro Devi started living with Johli Ram as his wife along with her minor children Bhanga Ram and Geeta Devi. It is further pleaded that defendant Sh Bhanga Ram and Smt. Geeta Devi born from the loin of Duni Chand and Maro Devi. It is further pleaded that after the death of Duni Chand his widow Smt. Maro Devi started living with Johli Ram as his wife along with her minor children Bhanga Ram and Geeta Devi. It is further pleaded that out of wedlock of Johli Ram and Marow Devi, Gurdas, Dev Raj, Smt. Gilo Devi, Kala Devi, Salochana Devi were born. It is further pleaded that Sh Bhanga Ram and his sister Geeta Devi were brought up by Johli Ram as his own children and they also considered Johli Ram as their father. It is further pleaded that due to love and affection Johli Ram during his life time executed registered Will on dated 9.11.1989 in equal shares in favour of plaintiffs and defendant. It is further pleaded that on the basis of testamentary document i.e. registered Will dated 9.11.1989 mutation No. 461 was attested on 27.2.1994. It is further pleaded that mutation was in the knowledge of plaintiffs. It is further pleaded that plaintiffs did not raise objection regarding attestation of mutation. It is further pleaded that suit land was inherited by plaintiffs and defendant in equal shares on the basis of testamentary document i.e. registered Will dated 9.11.1989. It is further pleaded that defendant is cultivating suit land. It is further pleaded that even in partition proceedings plaintiffs did not contest the share of defendant. It is further pleaded that entries recorded in the revenue records are in accordance with law. Prayer for dismissal of suit sought. 4. As per pleadings of parties learned Trial Court framed following issues on dated 13.9.2002 and 27.11.2002. 1.Whether Johli Ram was non-occupancy tenant over the suit land and after his death plaintiffs succeeded to his tenancy rights? …OPP. 2. Whether revenue entries showing 1/3rd share in favour of Bhanga Ram are wrong, if so its effect?. …OPP 3. Whether plaintiffs are entitled to the relief of permanent injunction?. …OPP. 4. Whether plaintiffs are estopped from filing present suit by their acts and conduct. …OPD. 5. Whether Johli Ram adopted Bhanga Ram and Geeta Devi as son and daughter on his marriage with Smt. Maro Devi in customary manner, if so its effect?. …OPD. 5A. …OPP 3. Whether plaintiffs are entitled to the relief of permanent injunction?. …OPP. 4. Whether plaintiffs are estopped from filing present suit by their acts and conduct. …OPD. 5. Whether Johli Ram adopted Bhanga Ram and Geeta Devi as son and daughter on his marriage with Smt. Maro Devi in customary manner, if so its effect?. …OPD. 5A. Whether Johli Ram had become owner of suit land on 1.10.1973 under section 104(3) HP Tenancy and Land Reforms Act 1972 if so its effect? …OPD. 6. Whether defendant is entitled to tenancy right after the death of Johli Ram, if so its effect?. …OPD. 7. Relief. 5. Learned Trial Court decided issues No. 1 to 3 in affirmative. Learned Trial Court decided issues No. 4 to 6 in negative. Learned Trial Court decreed the suit and held that plaintiffs Gurdas and Dev Raj are non-occupancy tenants in possession of suit land and learned Trial Court restrained defendant Sh Bhanga Ram from interfering in the possession of suit land. 6. Feeling aggrieved against judgment and decree passed by learned Trial Court Bhanga Ram filed appeal before learned Additional District Judge Sirmour District at Nahan HP. Learned Additional District Judge Nahan affirmed the judgment and decree passed by learned Trial Court and dismissed the appeal filed by Bhanga Ram. 7. Feeling aggrieved against judgment and decree of learned Additional District Judge Sirmour District at Nahan appellant Bhanga Ram filed present RSA. Following substantial questions of law framed in present RSA by HP High Court. 1. Whether Johli Ram who was tenant on the suit land became owner of such land under subsection (3) of Section 104 of HP Tenancy and Land Reforms Act 1972 and he could bequeath suit land by way of Will Ext DW2/A to the plaintiffs, defendant and succession to suit land after the death of Johli Ram would not be governed by Section 45 of the Act. 2. Whether Courts below have misconstrued, misinterpreted and misapplied the material on record and have taken perverse view in decreeing the suit of plaintiffs. 8. Court heard learned Advocate appearing on behalf of the parties at length and also perused entire record carefully. 9. Findings upon point No.1 of substantial question of law with reasons. 9.1 PW1 Gurdas has filed affidavit in examination-in-chief. 8. Court heard learned Advocate appearing on behalf of the parties at length and also perused entire record carefully. 9. Findings upon point No.1 of substantial question of law with reasons. 9.1 PW1 Gurdas has filed affidavit in examination-in-chief. There is recital in affidavit that father of deponent namely Johli Ram was non-occupancy tenant over suit land measuring 11 bigha 11 biswa. There is recital in affidavit that father of plaintiffs died on 22.11.1993 leaving behind deponent and his brother Dev Raj as his legal heirs. There is further recital in affidavit that deponent and his brother inherited tenancy rights of his father over suit land and they are now non-occupancy tenants in possession of suit land. There is further recital in affidavit that deponent installed tube well for irrigation in suit land and also constructed irrigation channels. There is further recital in affidavit that defendant on 15.1.2001 entered in suit land with intention to destroy wheat crop and take forcible possession of suit land. There is further recital in affidavit that defendant claimed that he has legal right in suit land on the basis of registered Will executed by Johli Ram. There is further recital in affidavit that mutation sanctioned in favour of defendant in the revenue record on the basis of registered Will dated 9.11.1989. There is further recital in affidavit that Johli Ram did not execute Will in favour of defendant qua suit property. There is further recital in affidavit that defendant has no legal rights and title in the suit property. There is further recital in affidavit that PW1 Gurdas and his brother inherited tenancy rights in the suit land being legal heirs of deceased Johli Ram. PW1 has admitted in cross examination that Johli Ram and Duni Chand were real brothers. PW1 has admitted that Smt. Maro Devi was the wife of Duni Chand. PW1 has stated that Johli Ram kept Maro Devi as his wife after death of Duni Chand. PW1 has denied suggestion that Johli Ram has executed registered Will in favour of defendant qua suit property. PW1 has denied suggestion that defendant did not threaten to interfere in the suit land. 9.2 DW1 Bhanga Ram has filed affidavit in examination-in-chief. There is recital in affidavit that Duni Chand and Johli Ram were real brothers. There is further recital in affidavit that Duni Chand died in the year 1952. PW1 has denied suggestion that defendant did not threaten to interfere in the suit land. 9.2 DW1 Bhanga Ram has filed affidavit in examination-in-chief. There is recital in affidavit that Duni Chand and Johli Ram were real brothers. There is further recital in affidavit that Duni Chand died in the year 1952. There is further recital in affidavit that in the year 1953 as per customs Johli Ram married with Maro Devi who was widow of Duni Chand and thereafter Maro Devi, Bhanga Ram and Geeta Devi resided along with Johli Ram. There is further recital in affidavit that after the death of Johli Ram plaintiffs and defendant became owners of suit land on the basis of testamentary document i.e. registered Will. There is further recital in affidavit that Gurdas, Dev Raj, Kala Devi and Salochana and Gillo Devi born from the loin of Johli Ram and Maro Devi. There is further recital in affidavit that Johli Ram nourished Bhanga Ram and Geeta Devi as his own son and daughter. There is further recital in affidavit that defendant used to perform agriculture work with Johli Ram. There is further recital in affidavit that on 9.11.1989 Johli Ram executed registered Will in favour of plaintiffs and defendant qua suit land. There is further recital in affidavit that defendant is co-sharer in suit land. There is further recital in affidavit that tube well was installed in the suit land by Johli Ram. There is further recital in affidavit that after the death of Johli Ram mutation qua estate of deceased Johli Ram was sanctioned as per testamentary document i.e. registered Will. There is further recital in affidavit that partition case was also filed and defendant was impleaded as co-party in partition proceedings. There is further recital in affidavit that estate of deceased Johli Ram devolved upon plaintiffs and defendant on the basis of testamentary document i.e. registered Will dated 9.11.1989. 9.3 DW2 Rakesh Kumar has filed affidavit in examination-in-chief. There is recital in affidavit that Brij Bhushan Gupta was father of DW2 who had died. There is further recital in affidavit that father of DW2 was petition writer and DW2 is familiar with the signature of his deceased father. There is recital in affidavit that Will dated 9.11.1989 was written by father of DW2 namely Brij Bhushan Gupta and DW2 identified the signature of Brij Bhushan upon registered Will dated 9.11.1989. There is further recital in affidavit that father of DW2 was petition writer and DW2 is familiar with the signature of his deceased father. There is recital in affidavit that Will dated 9.11.1989 was written by father of DW2 namely Brij Bhushan Gupta and DW2 identified the signature of Brij Bhushan upon registered Will dated 9.11.1989. 9.4 DW3 Ram Sawrup has filed affidavit in examination-in-chief. There is recital in affidavit that registered Will dated 9.11.1989 was executed by Johli Ram. There is further recital in affidavit that Johli Ram executed Will in favour of Bhanga Ram, Dev Raj and Gurdas in equal shares. There is further recital in affidavit that registered Will dated 9.11.1989 was read over to testator and testator after admitting the contents of registered Will as correct marked his thumb impression on the Will. There is further recital in affidavit that thereafter Will was presented before Sub Registrar and Sub Registrar explained the contents of Will to the testator. There is further recital in affidavit that testator has admitted the contents of the Will as correct before learned Sub Registrar. 9.5 DW4 Pala Ram has filed affidavit in examination-in-chief. There is recital in affidavit that Johli Ram and Duni Chand were real brothers. There is further recital in affidavit that after death of Duni Chand his widow namely Maro Devi married with Johli Ram according to customary rights. There is recital in affidavit that after customary marriage Johli Ram brought Maro Devi and her minor children namely Bhanga Ram and Geeta Devi to his residential house. There is recital in affidavit that there is custom in the area to marry widow of brother. 9.6 DW5 Chitru Ram has filed affidavit in examination-in-chief. There is recital in affidavit that Johli Ram and Duni Chand were real brothers. There is further recital in affidavit that after death of Duni Chand Johli Ram married with Maro Devi widow of Duni Chand and brought Bhanga Ram and Geeta Devi to his residential house. There is further recital in affidavit that Johli Ram treated Bhanga Ram and Geeta Devi as his children during his life time. There is further recital in affidavit that there is custom in the area to marry widow of bother by way of customary marriage. 10. Following documentaries evidence produced by parties. (1) Ext P2 is the copy of mutation No. 461 dated 27.2.1994 qua suit property. There is further recital in affidavit that there is custom in the area to marry widow of bother by way of customary marriage. 10. Following documentaries evidence produced by parties. (1) Ext P2 is the copy of mutation No. 461 dated 27.2.1994 qua suit property. (2) Exts. P3 to Ext P5 are the copies of jamabandis qua suit land. (3) Ext P6 is the copy of mutation. (4) Ext. DW2/A is the copy of registered Will dated 9.11.1989 executed by Johli Ram in favour of Bhanga Ram, Dev Raj and Gurdas in equal shares qua suit land. (5) Ext D6 and D7 are the copies of mutation. (6) Ext D8 is the copy of jamabandi for the year 1974-75 qua suit property. 11. Submission of learned Advocate appearing on behalf of appellant that Johli Ram was tenant of suit land and he has acquired proprietary rights automatically after operation of HP Tenancy and Land Reforms Act 1972 is accepted for the reasons hereinafter mentioned. As per jamabadi for the year 1974-75 placed on record Sh Ram Prasad son of Munshi Ram was the owner of suit land and Johli Ram was non-occupancy tenant of suit land. As per rent column it has been specifically mentioned that Johli Ram used to pay 1/4th produce as rent to land owner. It is held that HP Tenancy and Land Reforms Act 1972 received assent of President of India on 2.2.1974 and published in Rajpatra HP on 21.2.1974 and rules framed under HP Tenancy and Land Reforms Act 1972 came into force on 3.10.1975 and after issuance of notification and rules framed therein Johli Ram acquired proprietary rights in suit land automatically under Section 104 of HP Tenancy and Land Reforms Act 1972 by operation of law. See 1979 SLC 215 HP title Daulat Ram Vs. State of HP. Also see 1997 (1) SLJ (HP) title Mohar Singh Vs. Manju Devi and others. 12. Ram Prasad original land owner and his legal heirs namely Sadhu Ram, Kailash Chand, Kamla Devi and Sawan Devi did not file any application for resumption of land before Land Reforms Officer as per HP Tenancy and Land Reforms Act 1972 within stipulated period. It is held that after acquiring proprietary rights by Johli Ram automatically by operation of law Johli Ram was legally competent to execute registered Will dated 9.11.1989 qua suit land. It is held that after acquiring proprietary rights by Johli Ram automatically by operation of law Johli Ram was legally competent to execute registered Will dated 9.11.1989 qua suit land. It is proved on record that Johli Ram after acquiring proprietary rights in the suit land automatically by operation of law has executed Will on dated 9.11.1989 in favour of plaintiffs and defendant in equal shares. Registered Will dated 9.11.1989 is proved by way of testimony of marginal witness namely Ram Sarup son of Devi Chand. 13. DW3 Ram Sarup son of Sh Devi Chand marginal witness of registered Will dated 9.11.1989 has specifically stated in positive manner that deceased Johli Ram executed registered Will on dated 9.11.1989 in a sound disposing state of mind. DW3 Ram Sarup has stated in positive manner that the contents of registered Will were read over and explained to Johli Ram and Johli Ram admitted the contents of registered Will as correct before marginal witness. DW3 Ram Sarup has stated in positive manner that thereafter Will was produced before Sub Registrar and contents of Will were admitted as correct by testator namely Johli Ram before learned Sub Registrar. It is held that Johli Ram has executed a Will after acquiring proprietary rights automatically by operation of law in the suit land. Testimony of DW3 is trustworthy, reliable and inspire confidence of court. 14. Even DW2 Rakesh Gupta son of Sh Brij Bhushan Gupta has identified the signature of deed writer in accordance with law in the present case. DW2 has stated that Will dated 9.11.1989 executed by deceased Johli Ram was written by his father Brij Bhushan Gupta. Testimony of DW2 is also trustworthy, reliable and inspire confidence of Court. 15. It is proved on record that Duni Chand father of defendant and Johli Ram father of plaintiffs were real brothers. It is proved on record that Maro Devi wife of Duni Chand had given birth to Bhanga Ram defendant and Geeta Devi. It is proved on record that after the death of Duni Chand Maro Devi remarried with Johli Ram by way of customary manner. It is proved on record that from the loin of Johli Ram and Maro Devi plaintiffs namely Gurdas and Dev Raj and daughters namely Gilo Devi, Kala Devi and Salochna were born. 16. It is proved on record that after the death of Duni Chand Maro Devi remarried with Johli Ram by way of customary manner. It is proved on record that from the loin of Johli Ram and Maro Devi plaintiffs namely Gurdas and Dev Raj and daughters namely Gilo Devi, Kala Devi and Salochna were born. 16. Submission of learned Advocate appearing on behalf of respondents that proprietary rights qua suit land did not confer upon Johli Ram automatically by operation of law and Johli Ram was not legally competent to execute registered Will dated 9.11.1989 qua suit land is rejected being devoid of any force for the reasons hereinafter mentioned. It is held that in view of ruling cited supra vestment of proprietary rights upon non-occupancy tenant is automatic after operation of notification. There is no evidence on record that Ram Prasad owner or his L.Rs disputed tenancy rights of Johli Ram at any point of time. There is no evidence on record that Ram Prasad original owner or his L.Rs have filed any resumption application before Land Reforms Officer within stipulated period under section 104 of HP Tenancy and Land Reforms Act 1972. Ram Prasad original owner of suit land died on 12.6.1977 and HP Tenancy and Land Reforms Act 1972 received assent of President of India on 2.2.1974 and published in HP Rajpatra on 21.2.1974. 17. Submission of learned Advocate appearing on behalf of respondents that till date mutation of proprietary rights have not been sanctioned upon Johli Ram and on this ground RSA filed by Bhanga Ram be dismissed is rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that mutation did not create or extinguish any title in immovable property. See Navalshankar Ishwarlal Dave and another Vs. State of Gujarat and others AIR 1994 SC 1496 (DB). Also see AIR 2015 SC 2499 title H. Lakshmaiah Reddy and others Vs. L. Venkatesh Reddy (DB). It is held that mutation under section 104 of HP Tenancy and Land Reforms Act 1972 is only procedural matter under HP Tenancy and Land Reforms Act 1972 and rules framed therein. 18. It is held that succession in the present case would be governed on the basis of registered Will Ext DW2/A dated 9.11.1989 and would not be governed under Section 45 of HP Tenancy and Land Reforms Act 1972. 18. It is held that succession in the present case would be governed on the basis of registered Will Ext DW2/A dated 9.11.1989 and would not be governed under Section 45 of HP Tenancy and Land Reforms Act 1972. It is held that Johli Ram has executed registered Will dated 9.11.1989 after acquiring proprietary rights automatically by operation of law in the suit land. Hence point No.1 of substantial question of law is decided in favour of appellant. Findings on point No.2 of substantial question of law with reasons. 19. Submission of learned Advocate appearing on behalf of appellant that learned Trial Court and learned First Appellate Court have misconstrued, misinterpreted and misapplied material on record and judgment and decree passed by learned Trial Court and affirmed by learned First Appellate Court are perverse and based upon non-appreciation of oral as well as documentary evidence placed on record is accepted for the reasons hereinafter mentioned. It is held that Johli Ram has acquired proprietary rights automatically over suit land after operation of notification. It is held that rest of the matters mentioned under Section 104 of HP Tenancy and Land Reforms Act are procedural in nature. It is held that rights granted to party by way of law cannot be denied simply on the basis of procedural lapses on the part of public official. It is also further held that adoption of Sh Bhanga Ram defendant by Johli Ram is not proved as required under Hindu adoption and Maintenance Act 1956. Actual giving and taking ceremony of adoption not proved on record as required under law. See M.Gurudas Vs. Rasaranjan AIR 2006 SC 3275 . In view of above stated facts point No. 2 of substantial question of law is decided in favour of appellant. Relief. 20. In view of above stated findings RSA No. 186 of 2005 is accepted. Judgment and decree passed by learned Trial Court and affirmed by learned First Appellate Court are set aside and civil suit No. 10/1 of 2001 filed by plaintiffs Gurdas and Dev Raj title Sh Gurdas and others Vs. Sh Bhanga Ram is dismissed. Parties are left to bear their own costs. Learned Registrar Judicial will prepare decree sheet in accordance with law. File of learned Trial Court and file of learned First Appellate Court along with certified copy of judgment and decree be sent back forthwith. Sh Bhanga Ram is dismissed. Parties are left to bear their own costs. Learned Registrar Judicial will prepare decree sheet in accordance with law. File of learned Trial Court and file of learned First Appellate Court along with certified copy of judgment and decree be sent back forthwith. RSA No. 186 of 2005 is disposed of. Pending applications if any also stands disposed of.