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2016 DIGILAW 528 (HP)

BALBIR SINGH DHAWAN v. JOGINDER SINGH

2016-04-21

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. 1. This regular second appeal is directed against the judgment and decree of the learned Addl. District Judge, Shimla, H.P., dated 30.9.2015, passed in Civil Appeal No. 1-R/13 of 2015/11. 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 a suit for declaration to the effect that he had become owner in-possession of the land, as detailed in the plaint, by way of conferment of proprietary rights as per the H.P. Tenancy and Land Reforms Act and also prayed that the sale deed No. 256/74 dated 6.9.1974 and gift deed No. 196/02 dated 13.6.2002 and mutation Nos. 6783 and 184, attested on their basis, be declared null and void. He has also planted trees over the suit land. All the defendants suddenly appeared on the spot on 10.11.2007 and made an attempt to dispossess him from the suit land and also started digging the land. Thereafter, the plaintiff inquired about the revenue record and after going through the copy of the jamabandi for the year 2003-04, he was surprised to note that the defendants have managed to bring vast changes in the revenue record. 3. The suit was contested by the defendants by filing written statement. According to the defendants, the plaintiff was never inducted as Gair Morusi tenant under the previous owner, namely, Humanand and no rent was being paid by him and as such, he did not fall within the purview of tenant as defined in the H.P. Tenancy and Land Reforms Act. Sh. Humanand had every right to alienate the suit land and hence the sale deed as well as the gift deed has been rightly executed. 4. The replication was filed. The learned Civil Judge (Jr. Divn.) (II), Rohru, Distt. Shimla framed the issues on 12.6.2008. The suit was dismissed vide judgment dated 1.7.2011. The plaintiff, feeling aggrieved, preferred an appeal against the judgment and decree dated 1.7.2011. The learned Addl. District Judge, Shimla dismissed the same on 30.9.2015. Hence, this regular second appeal. 5. Mr. Dushyant Dadwal, Advocate, appearing on behalf of the appellant, on the basis of the substantial questions of law framed, has vehemently argued that the plaintiff has proved that he was inducted as tenant by Sh. Humanand. The learned Addl. District Judge, Shimla dismissed the same on 30.9.2015. Hence, this regular second appeal. 5. Mr. Dushyant Dadwal, Advocate, appearing on behalf of the appellant, on the basis of the substantial questions of law framed, has vehemently argued that the plaintiff has proved that he was inducted as tenant by Sh. Humanand. The learned Courts below have not correctly appreciated the oral as well as documentary evidence available on record. He then contended that his client was in possession of the suit land. On the other hand, Mr. Ajay Kumar, Sr. Advocate, has supported the judgments and decrees passed by both the courts below. 6. I have heard learned counsel for both the sides and have also gone through the judgments and records of the case carefully. 7. The plaintiff, in his cross-examination, has admitted that at the time of sale on 6.9.1974, Sh. Humanand also handed over the possession of the suit land to defendant No. 1. According to the latest jamabandis, the defendant No. 1 has been shown as owner-in-possession of the suit land. The precise case of the plaintiff was that he had become absolute owner after coming into force of the H.P. Tenancy and Land Reforms Act. As per the jamabandi for the year 1967-68 Ext. PW-1/A, Sh. Humanand has been shown to be the owner of the suit land whereas the plaintiff is shown to be in possession as Gair Morusi tenant. According to column No. 7 of the jamabandi Ext. PW-1/A, the entry as "Bashra Malkaan" has been made which suggests that no rent was being paid by the tenant i.e. plaintiff and the land revenue was being paid by the owner to the State of Himachal Pradesh. There is no evidence on record to suggest even remotely that the plaintiff has entered into agreement with the land owner Sh. Humanand. He has not paid any rent to the land owner. It was for the plaintiff to prove that he was paying rent to the land owner in money or kind. The plaintiff had not become the owner by way of conferment of proprietary rights and thus Sh. Humanand had every right to dispose of the property, including by way of gift deed No. 196/02 dated 13.6.2002. The mutation attested on behalf of gift deed also cannot be held to be invalid. 8. The plaintiff had not become the owner by way of conferment of proprietary rights and thus Sh. Humanand had every right to dispose of the property, including by way of gift deed No. 196/02 dated 13.6.2002. The mutation attested on behalf of gift deed also cannot be held to be invalid. 8. The plaintiff has never come into possession of suit land, as discussed herein above, rather he himself has admitted that the possession of the suit land was with the defendants. 9. The sale deed No. 256 of 1974 is dated 6.9.1974 and gift deed No. 196/02 is dated 13.6.2002 and the suit was instituted only on 2.1.2008. Thus, the same was filed beyond the period of limitation. 10. The plaintiff has also admitted that Sh. Humanand was owner of the suit land, but he has not paid any rent to the owner. The plaintiff has nowhere stated as to how he was inducted as tenant by Sh. Humanand over the suit land. The plaintiff has also admitted that the possession was delivered to defendant No. 1 Joginder Singh in the year 1974. The substantial questions of law are answered accordingly. 11. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending application(s), if any.