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2016 DIGILAW 1973 (HP)

Dile Ram v. Sidhu Ram

2016-09-15

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. 1. This regular second appeal is directed against the judgment and decree of the learned District Judge, Kullu, H.P. dated 19.12.2003, passed in Civil Appeal No. 53/2002. 2. “Key facts” necessary for the adjudication of this regular second appeal are that the respondents-plaintiffs (hereinafter referred to as the plaintiffs), have instituted a suit for permanent prohibitory injunction against the appellants-defendants (hereinafter referred to as the defendants). According to the averments made in the plaint, the land comprised in Khata Khatauni No. 505 min/808, Kh. No. 1671, measuring 1-2-0 bighas situated in Phati Vashishat, Kothi Jagatsukh was recorded in the ownership of defendants No. 7 to 9, 13 and one deceased Bir Singh whose legal representatives are defendants Nos. 10 to 12 but in the possession of deceased Dodu, the father of plaintiffs who was inducted as tenant at will on paying rent and now vide mutation No. 3466, the tenancy rights of deceased Dodu were inherited by plaintiffs in equal shares. The land comprised in khata/khatauni No. 505 min/807 min, Kh. No. 1599 and 1660, measuring 2-9-0 bighas situated in Phati Vashishat, Kothi Jagatsukh was recorded in the name of deceased Ram Chand whose legal representatives are defendants No. 2 to 6 and in this land also deceased Dodu was inducted as tenant at will and now vide mutation No. 3466, tenancy rights were inherited by the plaintiffs. Dodu expired in the year 1971 and after his death the tenancy rights were inherited by plaintiffs and they started payment of rent to the owners and subsequently by operation of Section 104 of the H.P. Tenancy and Land Reforms Act, 1972, the plaintiffs became owner of the suit land on appointed day. The defendants have filed applications before the Tehsildar (Settlement) Kullu for the correction of revenue entries in which they have claimed that suit land was purchased by them and Dodu during his life time had surrendered/relinquished his tenancy rights. It was alleged that in the applications it was mentioned that plaintiffs are not in possession of suit land which fact was incorrect. The plaintiffs and their father have raised orchard over the suit land, out of which the plants on the land 0-9-0 bighas in Kh. No. 1668 are small plants and remaining portion of the land comprises fruit bearing plants. On the portion of land containing Kh. The plaintiffs and their father have raised orchard over the suit land, out of which the plants on the land 0-9-0 bighas in Kh. No. 1668 are small plants and remaining portion of the land comprises fruit bearing plants. On the portion of land containing Kh. No. 5599, two houses have been constructed by deceased Dodu, one of which is 2½ storyed and other is 1½ storyed. 3. The suit was contested by the defendants. According to the defendants, Dodu was never inducted as tenant. The mutation No. 3466 was wrongly attested and sanctioned as Dodu himself was not a tenant in possession of the suit land. The mutation does not confer any title, right or interest to the plaintiffs. It was also denied that plaintiffs have become owners of the suit land by operation of Section 104 of the H.P. Tenancy and Land Reforms Act. The filing of three applications before the Assistant Collector is admitted. It is further averred that earlier Dodu was tenant in possession of the suit land under the previous owner but he had failed to pay rent to the owners and had fallen in huge arrears of rent. He was not in a position to cultivate the suit land and to pay the arrears of rent and as such he offered to surrender the possession of the suit land and relinquish the tenancy in favour of previous owner. The offer was accepted by the owners and the suit land was handed over to them in the year 1959. There was no relationship of landlord or tenant. Dina Ram, Govind and Chetu who were owners-in-possession of land measuring 0-19-0 bighas contained in Kh. Nos. 1668 and 1970 through a registered sale deed dated 3.4.1967 sold the land in favour of defendant No. 1 and possession of the land was also delivered to defendant No. 1. Sh. Primu and Tikam Ram being owners-in- possession of land measuring 3-14-0 bighas contained in Kh. Nos. 1671, 1599 and 1600 through a registered sale deed dated 21.5.1962 sold the land in favour of Budh Ram and Ram Chand the predecessor in interest of defendants No. 2 to 13 and the actual and physical possession of the same was also delivered to Budh Ram and Ram Chand. Sh. Ram Chand, predecessor-in-interest of defendants Nos. Nos. 1671, 1599 and 1600 through a registered sale deed dated 21.5.1962 sold the land in favour of Budh Ram and Ram Chand the predecessor in interest of defendants No. 2 to 13 and the actual and physical possession of the same was also delivered to Budh Ram and Ram Chand. Sh. Ram Chand, predecessor-in-interest of defendants Nos. 2 to 6 has constructed two houses i.e. single storyed house measuring 37’ x 16’ and two storyed house measuring 18’ x 16½’ on Kh. Nos. 1599 and 1600. 4. Replication was filed and the learned Sub Judge 1st Class, Manali framed the issues on 21.11.2001 and the suit was dismissed on 13.8.2002. The plaintiffs, feeling aggrieved, preferred an appeal before the learned District Judge, Kullu. He allowed the same on 19.12.2003. Hence, this regular second appeal. 5. The regular second appeal was admitted on 15.10.2004 on the following substantial questions of law: “1. Whether the learned first appellate Court has misread and misconstrued the oral and documentary evidence on record, especially the statements of PW-1, DW-1 and DW-2, DWs 5 to 7, Ext. DW-1/A, Ex. DW-1/C, Ex. DW-2/A, Ex. DW-3/A and Ex. DW-5/A and the judgment and decree, as such by the learned first appellate court is based upon mis-appreciation of facts and law? 2. Whether without effecting any enquiry as envisaged under the H.P. Tenancy and Land Reforms Act and rules, the officer concerned can grant and sanction proprietary rights beyond the provisions of the Act and Rules framed there under and without making any enquiry and whether such grant creates any title in favour of the tenant, especially when mutation, in itself does not create any title?” 6. Mr. Sanjeev Kuthiala, Advocate, appearing on behalf of the appellants, on the basis of the substantial questions of law framed, has vehemently argued that the first appellate Court has misread and misconstrued the oral and documentary evidence on record, especially the statements of PW-1, DW-1 and DW-2, DWs 5 to 7, Ext. DW-1/A, Ex. DW-1/C, Ex. DW-2/A, Ex. DW-3/A and Ex. DW-5/A. He also contended that the conferment of proprietary rights upon the plaintiffs was without making any enquiry. On the other hand, Mr. Bhupinder Gupta, Sr. Advocate has supported the judgment and decree dated 19.12.2003 passed by the learned first appellate Court. 7. DW-1/A, Ex. DW-1/C, Ex. DW-2/A, Ex. DW-3/A and Ex. DW-5/A. He also contended that the conferment of proprietary rights upon the plaintiffs was without making any enquiry. On the other hand, Mr. Bhupinder Gupta, Sr. Advocate has supported the judgment and decree dated 19.12.2003 passed by the learned first appellate Court. 7. Since both the substantial questions of law are inter-connected, hence are taken up together for determination to avoid repetition of discussion of evidence. 8. I have heard learned counsel for the parties and have also gone through the judgments and records of the case carefully. 9. One of the plaintiffs, namely, Sidhu Ram has appeared as PW-1. He deposed that his father Dodu Ram was tenant since 1953. His father has planted apple orchard. He has constructed two houses, one is 1½ storyed and other is 2½ storyed. His father expired in the year 1971. The land was inherited by all the brothers. They used to pay rent to the landlords till 1975 and they became owners after the enforcement of Section 104 of the H.P. Tenancy and Land Reforms Act and thereafter they have stopped paying the rent. The defendants have started interfering in their possession. 10. DW-1 Kanshi Ram testified that he was working as Niab Tehsildar in Settlement at Manali in the year 1992. He has visited the spot and recorded the statements of the parties. In his cross-examination, he deposed that he has visited the spot at the instance of Tehsildar. He has admitted categorically that he has given the report on the basis of oral statements. He has also admitted that he has not called any member of the Panchayat on the spot, including Lambardar or Chowkidar. He did not remember the details of the adjoining fields. He has also admitted that he has not summoned any other witness and that defendants have not handed over any revenue papers to him. He also admitted that in the jamabandi for the year 1992-93, Dodu Ram was shown as tenant and Dila Ram and Om Parkash Shashni were landlords. He also admitted that tenancy was inherited by the plaintiffs from Dodu Ram and mutation was also attested in their favour. He admitted that during settlement, the Patwari also prepares khasra girdawri. He also admitted that at the time of girdawri, general public, Chowkidar etc. are present. He also admitted that tenancy was inherited by the plaintiffs from Dodu Ram and mutation was also attested in their favour. He admitted that during settlement, the Patwari also prepares khasra girdawri. He also admitted that at the time of girdawri, general public, Chowkidar etc. are present. The general public, Lambardar and Chowkidar give the details of the sown crops in the fields. He also admitted that at that time if there is any mistake in the revenue entry, the same is noted by the Patwari with pencil. The report is confirmed by the Kanungo. Thereafter, it is confirmed by the Tehsildar. He also reiterated that in the year 1975, in revenue papers, the plaintiffs have been shown as tenants. 11. DW-3 Om Parkash Shashni deposed that Dodu Ram may be cultivating the land of the landlords but since he was not in a position to pay the rent he told the landlords that he could not pay the rent and thereafter he relinquished the tenancy in their favour and possession was handed over to the landlords in the year 1959. Thereafter, his father Ram Chand and Budh Ram have purchased 3-0-11 bighas of land in the year 1962. He proved Ext. DW-3/A. The original sale deed was not produced. In his cross-examination, he admitted that he did not know properly about the sale of the land. He also admitted that in 1959, he did not know Dodu Ram. He also admitted that he was born in the year 1954. He also admitted that no conversation has taken place about giving of the possession of the land. Volunteered that it was told to him by his father. It was in the year 1975 that he was told about the surrendering of the possession of the land. His father has never told him about any writing to this effect. No ejectment proceedings were ever initiated against Dodu Ram. 12. DW-5 Dile Ram testified that he has planted trees after purchasing the land. He has submitted an application for correction of revenue entries which was pending before the Tehsildar. 13. DW-6 Dole Ram testified that Dile Ram has planted Cherry trees, Japani fruit plants on the land, including apples. Om Parkash has constructed house on the suit land. 14. DW-7 Tashi Ram testified that on the suit land the possession is with Om Parkash and Lala Budh Ram. 15. Mr. 13. DW-6 Dole Ram testified that Dile Ram has planted Cherry trees, Japani fruit plants on the land, including apples. Om Parkash has constructed house on the suit land. 14. DW-7 Tashi Ram testified that on the suit land the possession is with Om Parkash and Lala Budh Ram. 15. Mr. Sanjeev Kuthiala, Advocate has vehemently argued that there was no landlord-tenant relationship between Dodu predecessor-in-interest of plaintiffs and the defendants. However, the case set up by the defendants themselves is that Dodu Ram predecessor-in-interest of plaintiffs has relinquished the tenancy since he was in arrears of rent. The defendants have not led any tangible evidence to prove that in what manner Dodu Ram has relinquished the tenancy. According to the plaintiffs, Dodu Ram was inducted as tenant in the year 1959. According to Section 8 of the Punjab Security of Land Tenures Act, 1953, there would be continuity of tenancy and would not terminate with the death of tenant. The mutation was also attested in favour of the plaintiffs. The case of the defendants is that they have purchased the land in the year 1962. The tenancy of Dodu Ram was not effected even if the sale has taken place. Dodu Ram has died in the year 1971. The revenue entries are in favour of Dodu as tenant. The plaintiffs have thus acquired proprietary rights after coming into force of the H.P. Tenancy and Land Reforms Act, 1972. 16. PW-1 Sidhu Ram in his statement has deposed that they were paying rent to the landlords but after the conferment of proprietary rights upon them, they stopped paying the rent to the landlords. The revenue entries vide Ext. P-1 to P-14 from the year 1952-53 to 1991-92 have remained in favour of Dodu Ram. Dodu Ram was shown in possession of the suit land on payment of rent. The entries were changed in favour of defendants abruptly without there being any order of the competent authority. 17. The defendants have also filed an application under Order 41 Rule 27 CPC being CMP No. 19831/2014. The defendants have not given the date when they came into possession of the documents placed along with the application. Moreover, defendants have not shown that despite due diligence these documents could not be traced earlier. The purpose of filing application is not to fill up the lacunae. The defendants have not given the date when they came into possession of the documents placed along with the application. Moreover, defendants have not shown that despite due diligence these documents could not be traced earlier. The purpose of filing application is not to fill up the lacunae. The application has been filed under Order 41 Rule 27 CPC at a very belated stage. It cannot be believed that documents remained in the brief of local counsel and could not be produced before the lower appellate Court. Thus, the application merits dismissal. 18. Mr. Sanjeev Kuthiala, Advocate has relied upon the decisions in the cases of Sohawa Singh vs. Kesar Singh and others, reported in AIR 1932 Lahore 586, Bogha Singh alias Kishan Singh and Anr. vs. Harnarain Singh and Ors. reported in 1959 PLJ 136 and Jit Singh and others vs. Chanan Singh and another, reported in 1966 PLJ 246. These judgments are not applicable in the present case since they pertain to Punjab Tenancy Act, 1887 and the present lis is covered under the Punjab Security of Land Tenures Act, 1953. 19. It was for the revenue authorities to carry out necessary corrections after the death of Dodu Ram in the year 1971. It is reiterated that defendants have failed to lead any evidence that Dodu Ram had relinquished or surrendered his tenancy rights over the suit land in the year 1959. The tenancy has devolved upon the plaintiffs, being male lineal descendants. The landlord-tenant relationship has never come to an end in the year 1959. The learned first appellate Court has correctly appreciated the oral as well as documentary evidence. The proprietary rights have been conferred upon the plaintiffs after the death of their father under Section 104 of the H.P. Tenancy and Land Reforms Act, 1972, automatically. The substantial questions of law are answered accordingly. 20. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending applications, if any.