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2017 DIGILAW 1313 (HP)

Hari Singh v. Chaino

2017-11-29

CHANDER BHUSAN BAROWALIA

body2017
JUDGMENT : Chander Bhusan Barowalia, J. By way of the present appeal, the appellant has challenged the judgment and decree, passed by the Court of learned Additional District Judge, Fast Track Court, Chamba, District Chamba, in Civil Appeal No.25/2005/2004, dated 29.4.2005, vide which, the learned lower Appellate Court has affirmed the judgment and decree, passed by the learned Civil Judge (Junior Division) Dalhousie, District Chamba, in Civil Suit No.86 of 2001, dated 16.3.2004. 2. Material facts, necessary for adjudication of this Regular Second Appeal are that appellant/plaintiff (hereinafter referred to as ‘plaintiff’) maintained a suit for declaration, possession and permanent prohibitory injunction against the respondents/defendants (hereinafter referred to as ‘defendants’) alleging that suit land bearing Khasra No.189, Khata/Khatauni No.4/6, measuring 3-3 bighas, situated in Mauza Bhotan, Pargana Chuhan, Tehsil Dalhousie, District Chamba, (H.P.) (hereinafter referred to as ‘suit land’) is owned by the plaintiff and proforma defendant No.2, as he has inherited the suit land from his father late Shri Kesru, who expired in the year 1956, when the plaintiff was one and half year old. As per the plaintiff, one Hoshiara and proforma defendant No.2, co-sharers used to cultivate the suit land, after the death of father of the plaintiff. Further, the plaintiff joined Military services in April, 1974, when he was 19½ years old and remained in Military services upto 31st May, 2000, during this period, the suit land was being cultivated by his wife with the assistance of proforma defendant No.3 Khanno. The plaintiff gave four biswas of land, out of the suit land to defendant No.3, for construction of house in the year 1978, who constructed the house in the year 1979 and since then he is residing there and the entire suit land has been coming in possession of the plaintiff and proforma defendants. After retirement, the plaintiff came to know from the Patwari concerned that the suit land has been recorded in the name of Tejo, as tenant. The plaintiff requested to the defendant-Tejo, to get the entry deleted, as he was never in possession of the suit land, but he refused to do so. The plaintiff and proforma defendants are in possession of the suit property and Teju was never a tenant under the plaintiff. The plaintiff requested to the defendant-Tejo, to get the entry deleted, as he was never in possession of the suit land, but he refused to do so. The plaintiff and proforma defendants are in possession of the suit property and Teju was never a tenant under the plaintiff. Further, the revenue entries showing defendant No.1, in the column of cultivation, as non occupancy tenant are illegal and the plaintiff is not bound by the same, as deceased Tejo was never inducted as tenant over the suit land by him and proforma defendants. 3. Defendant No.1-Tejo, contested and resisted the suit by raising preliminary objections qua maintainability, cause of action, valuation and limitation and the plaintiff has suppressed the material facts from the Court, as earlier he had maintained an application for correction of the revenue entries before the learned Assistant Collector, Dalhousie, which was dismissed as withdrawn. On merits, defendant claimed that he has been coming in continuous possession and cultivating the suit land for the last more than 40 years, as non occupancy tenant and the plaintiff is shown, as owner of the suit land only in the entries of jamabandi for the year 1996-1997, but it is not shown as to how he has acquired the proprietary rights qua the suit land. 4. Replication was filed on behalf of the plaintiff, who reaffirmed and reasserted the contents, as made in the plaint and denied the averments, as contained in the written statement. 5. From the pleadings of parties, the learned trial Court framed following issues : “1. Whether the plaintiff alongwith defendant No.2 is the owner in possession of the suit land and the entry to the contrary showing the defendant No.1 to be in possession as tenant is wrong and not binding upon the rights of the plaintiff and defendant No.2, as alleged ?OPP 1(A) Whether plaintiff is entitled to relief of possession as prayed for ? OPP. 1(B) Whether plaintiff is entitled to the relief of permanent prohibitory injunction, as prayed for ? OPP. 1 (C) Whether plaintiff has no cause of action to file the present suit as alleged ? OPD. 2. Whether the suit of the plaintiff is not maintainable in the present form ? OPD. 3. Whether the plaintiff has suppressed the material facts and therefore, is not entitled for the relief claimed, as alleged ? OPD. 4. OPP. 1 (C) Whether plaintiff has no cause of action to file the present suit as alleged ? OPD. 2. Whether the suit of the plaintiff is not maintainable in the present form ? OPD. 3. Whether the plaintiff has suppressed the material facts and therefore, is not entitled for the relief claimed, as alleged ? OPD. 4. Whether the suit is bad for want of better particulars as alleged ? OPD. 5. Whether the suit is not properly valued ? OPD. 6. Whether the suit is time barred ? OPD. 7. Whether the defendant No.1 is in possession of the suit land for over 40 years as cultivator ? OPD. 8. Relief.” 6. The learned trial Court after deciding Issues No.1, Issue No.1 (A), Issue No.1 (B) in negative, Issue No.1 ( C ) and Issue No.2 in affirmative, Issue Nos.3 & 4 not pressed, Issue No.5 in negative, Issue Nos.6 & 7 in affirmative, dismissed the suit. 7. Feeling aggrieved thereby the plaintiff maintained first appeal before the learned Additional District Judge, Fast Track Court, Chamba, District Chamba, assailing the findings of learned trial Court below being against the law and without appreciating the evidence and pleading of the parties to its true perspective. The learned lower Appellate Court affirmed the findings of the learned Court below. The appellant has maintained the present Regular Second Appeal, which was admitted for hearing on 03.08.2005 on the following substantial questions of law: “1. Whether the findings of the trial Court as affirmed by the first appellate Court are dehors the evidence on record ? 2. Whether both the trial Court and the first appellate Court erred in holding respondent No.1-Tejo, as tenant of the land in question without there being any plea to this effect?” 8. Mr. Adarsh Sharma, learned counsel appearing on behalf of the appellant has argued that the learned Court below without appreciating the fact that the entry in the name of defendant has come, which is a stray entry and without any basis in the year 1964, dismissed the Civil Suit, which judgment and decree, was affirmed by the learned lower Appellate Court without any basis and thus the findings are required to be set aside and suit of the plaintiff required to be decreed. In support of his arguments, he has relied upon the judgment of this Hon’ble Court in RSA No.527 of 2010 titled Chain Singh and others vs. Kood Singh and others, decided on 20.4.2011. 9. On the other hand, Mr. R.K. Sharma, learned Senior Counsel appearing on behalf of the respondent has strenuously argued that as per the case of plaintiff, he was minor at that time, it was a Government land and father of the plaintiff was not in a position to obtain the land and so it is, but natural, when the defendant started tilling the land, the entry of tenancy was made in his favour, which was continued for the last more than 35 years, as the defendant cultivated the land for the last more than 35 years and it cannot be said that the entry of tenancy was without any basis in the year 1964. He has further argued that uncle and cousin brother of the plaintiff’s were also tilling, as tenant of the Government land alongwith other land of the plaintiff and tenancy of the plaintiff was never objected, so the suit of the plaintiff is not sustainable. The judgment as cited by the learned counsel appearing on behalf of the plaintiff is not applicable to the facts and circumstances of the present case, as in the present case, it was Government land and not the land of the plaintiff and the tenancy was created by the Government in favour of the defendant and defendant was paying ‘Gala Batai’ to the Government, as tenancy continuing for the last more than 35 years. Further, in the present case, the defendant was tenant and was known to the plaintiff, his uncle, brother and the plaintiff was having the knowledge of tenancy of the defendant, even after attaining the majority for more than 25 years. Even otherwise also, the judgment is not applicable to the facts and circumstances of the present case, as the entry in the copy of jamabandi for the year 1960-1961 was in favour of Shri Amro, as tenant. It is only Amro, who can say that he remained as a tenant over the suit land and the defendant never came in possession of the suit land, but Amro has not appeared in the witness box to say so. It is only Amro, who can say that he remained as a tenant over the suit land and the defendant never came in possession of the suit land, but Amro has not appeared in the witness box to say so. The case cited by the learned counsel appearing on behalf of the appellant was inter se the landlord and tenant, in which, the landlord has challenged the stray entry coming in the name of tenant, but in the present case, the land belongs to the State of Himachal Pradesh, in which, earlier Amro was tenant from the year 1962-63 onwards continuously defendant-Tejo is the tenant. In these circumstances also, the judgment is not applicable to the facts of the present case, as the plaintiff has not examined Amro, who was earlier to the defendant was recorded as tenant over the suit land. 10. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the record in detail. 11. To substantiate its case, it is clear that the defendant-Tejo, is being shown as non occupancy tenant qua the suit land since 1964-65, when it was in the ownership of the State of Himachal Pradesh, at that time, the plaintiff was neither shown owner nor occupancy tenant qua the suit land. The entries in the name of plaintiff Hari Singh appeared for the first time in the jamabandi for the year 1974-75, as occupancy tenant over the suit land. Against the column of rent, the rent is shown as payment of 1/4th of produce as ‘Galla Batai’, which entries of rent are repeated qua latest entries of jamabandi for the year 1996-97 Ex.PA and Ex.D-8. As such, the entries of record of rights, the claim of the plaintiff stands falsified to the effect that the suit land has been coming in his cultivatory possession from the time of his father since 1956 and deceased defendant-Tejo, never remained in exclusive possession of the suit land. As such, the entries of record of rights, the claim of the plaintiff stands falsified to the effect that the suit land has been coming in his cultivatory possession from the time of his father since 1956 and deceased defendant-Tejo, never remained in exclusive possession of the suit land. Now, it is for the plaintiff to say, as per the judgment passed by this Court that how the change in entry in his favour has occurred, when earlier defendant-Tejo, was tenant over the suit land, so the judgment, as cited above, is of no help to the plaintiff, as defendant-Tejo was continuing as tenant over the suit land from the year 1964-65 i.e. the land of the Government, on which defendant-Tejo and Amro, were the tenant, but Amro, has not been examined by the plaintiff to rebut that defendant-Tejo was not tenant over the suit land. There is no cogent and reliable evidence led on record by the plaintiff in support of his claim that the suit land has been coming in his cultivatory possession from the time i.e. after the death of his father i.e. from the year 1956. Plainitff-PW-1, deposed that the suit land was earlier in the ownership of the State of Himachal Pradesh and it was in possession of his father Kesru, who expired, when he was 1 ½ years old and after his death, the suit land was being cultivated by his uncle Hoshiara, stating that he joined Military services, when he was aged 19 ½ years and he retired from Military services, his maternal uncle and his wife used to cultivate the suit land, which version, is contrary to the pleaded case of the plaintiff. In his cross-examination, he could not deny specifically whether the Girdawari of the suit land has been recorded in favour of deceased defendant-Tejo since 1961-62 and stated that he got proprietary rights of the suit land in the year 1975, as he was in cultivatory possession of the suit land. He further stated that when he came to know about the wrong revenue entries, he moved an application for correction of Girdawari before the Tehsildar, which was subsequently withdrawn by him. Therefore, conflicting version of the plaintiff contrary to his pleaded case and contrary to the entries of record of rights cannot be safely relied upon. He further stated that when he came to know about the wrong revenue entries, he moved an application for correction of Girdawari before the Tehsildar, which was subsequently withdrawn by him. Therefore, conflicting version of the plaintiff contrary to his pleaded case and contrary to the entries of record of rights cannot be safely relied upon. On the other hand, the evidence led by the defendant is trustworthy and reliable. The defendant while appearing in the witness box as DW-1, stated that the suit land was earlier being cultivated by his father late Shri Tejo, who has expired and after his death, the suit land is being cultivated by him and his son Chamaru. He further admitted that his father used to pay rent in the shape of ‘Galla Batai’ i.e. 1/4th of the produce of the suit land to the owner of the suit land. He further deposed that his father late Shri Tejo, had four sons and his brothers, namely, Chaino and Mahesho, and are residing in Punjab for the last more than 35-40 years. The other witnesses DW-2, Dharam Singh and DW-3, Mohinder Singh, have deposed that the suit land was being cultivated by deceased Tejo, for the last 40 years and after his death, it is being cultivated by his son Bhimo, Galodo etc. There is nothing discrepant emerged in their statement. So, the defendant also led cogent and credible evidence in support of their plea that the suit land has been coming in their cultivatory possession for the last more than 40 years, as non occupancy tenant from the period of their predecessor-in-interest deceased defendant-Tejo. As the suit land was earlier in the ownership of the State of Himachal Pradesh and deceased defendant-Tejo was its non occupancy tenant on payment of rent in the shape of ‘Galla Batai’, therefore, the question of making payment of rent to the plaintiff does not arise, as he was not at all owner of the suit land, when deceased defendant-Tejo was inducted as tenant over the suit land in the year 1960-61. 12. From the aforesaid evidence, it is clear that the defendant was tenant of the State of Himachal Pradesh continuously for more than 40 years and the plaintiff has failed to prove the case, as set up by him. Though, on the other hand, it is the defendant, who was non occupancy tenant over the suit land. 12. From the aforesaid evidence, it is clear that the defendant was tenant of the State of Himachal Pradesh continuously for more than 40 years and the plaintiff has failed to prove the case, as set up by him. Though, on the other hand, it is the defendant, who was non occupancy tenant over the suit land. Ex.D-2, Ex.D-3, Ex.D-4, Ex.D- 5, Ex.D-7 and Ex.D-8, clearly depicts that defendant-Tejo was non occupancy tenant over the suit land and the presumption of truth is attached to the revenue entry. It is also clear that the findings recorded by the learned Courts below are the findings of facts, so no substantial question of law generally involved in the present case, however, substantial question of law No.1, as framed by this Hon’ble Court answered holding that the findings recorded by the learned Trial Court as affirmed by the learned lower Appellate Court are after appreciating the facts, which have come on record to its true perspective. Substantial question of law No.2, is answered accordingly holding that case of the defendant is that he was tenant over the suit land, so the learned lower Appellate Court has not erred in holding defendant No.1-Tejo, was tenant over the suit land belonging to the State of Himachal Pradesh. 13. Both the learned Courts below have correctly appreciated the oral as well as documentary evidence led by the parties and there is no need to interfere with the well reasoned judgments and decrees passed by both the learned Courts below. 14. In view of the above discussion, the appeal of the appellant is without merit, deserves dismissal and is accordingly dismissed. In the peculiar facts and circumstances of the case, parties are left to bear their own costs. Pending applications, if any, shall also stands disposed of.