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2017 DIGILAW 175 (HP)

State of H. P. v. Harbans

2017-03-15

AJAY MOHAN GOEL

body2017
JUDGMENT : Ajay Mohan Goel, J. By way of this Regular Second Appeal, the appellant-State has challenged the judgment and decree passed by the Court of learned Additional District Judge (II), Kangra at Dharamshala, Camp at Una in Civil Appeal No. 134/93 (177/94), dated 09.03.2000, vide which learned appellate Court while dismissing the appeal filed by the State, upheld the judgment and decree passed by the learned trial Court as well as the judgment and decree passed by the Court of learned Sub Judge 1st Class (II), Una in Civil Suit No. 17 of 1988, dated 21.04.1993, vide which the learned trial Court had decreed the suit for declaration filed by the plaintiffs therein. 2. This appeal was admitted on the following substantial questions of law: “1. Whether the learned Lower Courts below have mis-interpreted and mis-read the documentary evidence particularly D-1 & D-2? 2. Whether the State has become owner in view of the provisions of Section 31 of the H.P. Tenancy and Land Reforms Act.” 3. Brief facts necessary for the adjudication of the present case are that a suit for declaration was filed by the predecessors-in-interest of present respondents No. 1 to 4 to the effect that the plaintiffs No. 1 and 2 therein were coming in exclusive hissedari possession of land measuring 3 Kanal 12 Marlas, comprised in Khasra No. 1466 and plaintiffs No. 1 to 4 were coming in exclusive hissedari possession of land measuring 1 Kanal 13 Marlas, comprised in Khasra No. 1465 as co-sharers as per Jamabandi for the year 1980-81, situated in Village Beetan, H.B. 528, Sub Tehsil Haroli, District Una, which land stood mortgaged by the plaintiffs about 20 years ago to defendant No. 2 and Pirthi, predecessor- in-interest of defendants No. 3 to 9 as security for payment of debt, i.e. Rs.55/- and they entered into possession as mortgagees, but revenue officials customarily entered the names of defendants in revenue records as tenants at will ‘Babaza Sood’ Mublik Rs.55/-. As per the plaintiffs, in the month of Jeth, 1965, plaintiffs No. 1 and 2 had paid the security amount qua the said mortgage and had redeemed land in their favour and thereafter they were coming in actual physical hissedari possession of the same in their capacity as co-sharers and entries in revenue records reflecting the name of defendant No. 2 and Pirthi, predecessor-in-interest of defendants No. 3 to 9 as tenants at will were wrong, incorrect as well as null and void. It was further the case of the plaintiffs that Halqa Patwari had wrongly entered mutation Nos. 2257 and 2258 pertaining to the suit land, which was done at the back of the plaintiffs and the mutations so entered were entered on the basis of false and fraudulent entries in the name of defendant No. 2 and Pirthi. It was further the case of the plaintiffs that on 06.11.1981, Assistant Collector 2nd Grade had not only sanctioned the mutations in favour of defendant No. 1 at the back of the plaintiffs, but these were sanctioned against the statutory provisions of Himachal Pradesh Tenancy and Land Reforms Act as well as the Rules framed thereunder. It was on these bases that the suit was filed by the plaintiffs for a decree of declaration to the effect that suit land measuring 3 Kanal 12 Marlas details of which have been given above, was in exclusive hissedari possession of plaintiffs No. 1 and 2 and suit land measuring 1 Kanal 3 Marlas, details of which have also been given above, was in hissedari possession of plaintiffs No. 1 to 4 as co-sharers and that revenue entries appearing in favour of defendant No. 1 and Prithi predecessor-in-interest of defendants No. 3 to 9 were wrong, incorrect, illegal, fraudulent, null and void and that mutation Nos. 2257 and 2258 sanctioned on 06.11.1981 by Assistant Collector 2nd Grade in favour of defendant No. 1 at the back of plaintiffs were illegal, null and void, with a consequential relief of permanent prohibitory injunction for restraining defendants from claiming any right, title and interest over the suit land on the basis of said fraudulent revenue entries and mutations and from making any interference in the peaceful and lawful possession of the plaintiff over the suit land. 4. 4. The suit was contested by defendant No. 1 on one hand by filing a separate written statement and defendants No. 2, 3 and 5 to 9 on the other hand by filing a separate written statement. 5. In the written statement filed by defendant-State, the stand taken by the State was that plaintiffs were not in possession of the suit land as per entries recorded in revenue record and that Assistant Collector, 2nd Grade has rightly attested the mutation in favour of defendant No. 1 as “hissedar were not found in possession on spot”. 6. Defendants No. 2, 3, 5 and 9, on the other hand, by way of their written statement, admitted the claim put forth by the plaintiffs in the suit. 7. On the basis of pleadings of the parties, learned trial Court framed the following issues: “(i). Whether the plaintiffs 1 & 2 have been coming in exclusive hissadari possession of the land measuring 6 K-12 Mls. situated in Khasra No. 1466 and whether the plaintiffs 1 to 4 have been coming in exclusive hissadari possession of land measuring 1 K-13 Mls. comprised in Khasra No. 1465 as alleged? OPP. (ii) Whether the suit land was redeemed by the plaintiffs 1 & 2 as alleged? OPP. (iii) Whether the suit is not maintainable as alleged? OPD-I. (iv) If issues No. 1 & 2 are proved in affirmative, whether plaintiffs are entitled for the relief of declaration as alleged? OPP. (v) Whether the plaintiffs have no legal and enforceable cause of action? OPD-1. (vi) Whether the suit is barred by limitation as alleged? OPD. (vii) Whether the Court has no jurisdiction to try the suit? OPD-1. (viii) Whether no legal and valid notice has been served on H.P. State as alleged? OPD-1. (ix) Relief. 8. On the basis of evidence adduced by the respective parties in support of their respective claims, the following findings were returned by learned trial Court on the issues so framed: “(i) : Yes. (ii) : Yes. (iii) : No. (iv) : Yes. (v) : No. (vi) : No. (vii) : No. (viii) : No. (ix) : Suit is decreed as per operative part of the judgment. 9. (ii) : Yes. (iii) : No. (iv) : Yes. (v) : No. (vi) : No. (vii) : No. (viii) : No. (ix) : Suit is decreed as per operative part of the judgment. 9. Learned trial Court decreed the suit of the plaintiffs for declaration to the effect that plaintiffs 1 and 2 were in hissedari exclusive possession as co-sharers with regard to suit land measuring 3 Kanal 12 Marlas, comprised in Khasra No. 1466 and that plaintiffs No. 1 to 4 were in exclusive hissedari possession of land measuring 1 Kanal 3 Marlas bearing Khasra No. 1465, situated in village Beetan and that entries in revenue record reflecting Pirthi and Gurdass as tenants over the suit land and further the sanction of mutation Nos. 2257 and 2258 on the basis of said entries in favour of defendant No. 1 qua suit land were wrong and illegal. Learned trial Court also granted a decree for permanent prohibitory injunction restraining defendants from interfering in the possession of the plaintiffs over the suit land. 10. While decreeing the suit, it was held by the learned trial Court that the Civil Court was having jurisdiction to adjudicate the issue raised by the plaintiffs in view of the fact that mutations No. 2257 and 2258 were in fact sanctioned behind the back of the plaintiffs and without verifying the possession of the parties on the spot. Learned trial Court also held that Pirthi and Gurdass were in fact not in possession of suit land as tenants, but were in possession of the same as mortgagee and revenue entries reflecting them as tenants over the suit land were thus incorrect. While arriving at the said conclusion, learned trial Court took note of the statement of plaintiff Ashu Ram (PW-1), who deposed in the Court that the suit land was in fact orally mortgaged with Gurdass and Pirthi for an amount of Rs.550/- about 30 years back. Learned trial Court held that though as per revenue records, Pirthi and Gurdass were recorded as tenants at will in lieu of interest of Rs.550/-, but ocular evidence produced by plaintiffs was sufficient to rebut the said presumption and that defendant No. 2 had also admitted that he never remained in possession of the suit as tenant, but was in possession of the same only as a mortgagee. Learned trial Court also held that plaintiffs had categorically deposed in the Court that the suit land was in fact redeemed from Pirthi and Gurdass in the year 1965 and this statement of his was supported by the statement of PW-2 Sultana Ram. Learned trial Court further held that Gurdass Ram had also stated on oath that the suit land was redeemed in the year 1965 and possession thereof was handed over to the plaintiffs. On these bases, it was concluded by the learned trial Court that suit land in fact stood redeemed in the year 1965 and possession of the suit land was delivered by mortgagee to the mortgagor in the said year and since then plaintiffs were coming in possession of the suit land as co-sharers and revenue entries to the contrary were thus in correct, null and void. 11. On the issue of limitation, learned trial Court returned the findings that as land of plaintiffs was wrongly mutated in favour of defendant No. 1, therefore, plaintiffs in their capacity as owners of the suit land had cause to file the suit and as it stood established that they were in possession of the suit land, the suit could not be said to be barred by limitation because plaintiffs filed the suit when defendants tried to interfere in the rights of ownership and possession of the plaintiffs. 12. Learned appellate Court while upholding the findings so returned by the learned trial Court held that copy of Jamabandi for the year 1955-56 Ex. P-1 demonstrated that plaintiffs therein were recorded as co-sharers in hissedari possession and these entries continued even in the Jamabandi for the year 1965-66 Ex. P-2 and it was only in the Jamabandi for the year 1970-71 Ex. P-3 that for the first time, defendant No. 2 Gurdas and Pirthi, the predecessor-in-interest of defendants No. 3 to 9 were recorded in possession as tenants at will. Learned appellate Court also held that vide mutation Nos. 2257 and 2258 dated 06.11.1981, Ex. D1 and Ex. D2, suit land was mutated in favour of defendant No. 1 on the ground that defendant No. 2 and Pirthi, predecessor-in-interest of defendants No. 3 to 9 had relinquished their possession over the suit land as tenants. Learned appellate Court also held that vide mutation Nos. 2257 and 2258 dated 06.11.1981, Ex. D1 and Ex. D2, suit land was mutated in favour of defendant No. 1 on the ground that defendant No. 2 and Pirthi, predecessor-in-interest of defendants No. 3 to 9 had relinquished their possession over the suit land as tenants. Learned appellate Court further held that as per the evidence on record, it stood proved that the suit land in fact was mortgaged with defendant No. 2 and Pirthi and the same stood redeemed in the year 1965 when plaintiffs returned back the mortgage money and defendant No. 2 and Pirthi in fact were never inducted as tenants at will over the suit land. Learned appellate Court further went on to hold that there was no occasion for Pirthi and Gurdass to have had relinquished their tenancy in favour of the State Government, i.e., defendant No. 1, as Pirthi and Gurdass in fact were never inducted as tenants. It further held that copy of Jamabandi for the year 1970-71, in which Pirthi and Gurdass were reflected to be tenants at will for the first time also did not reflect that they were paying any rent to the owners. Learned appellate Court further held that merely because it was reflected in revenue records that Pirthi and Gurdass were paying interest, this did not mean that they were paying rent as there was lot of difference between the two words ‘interest’ and ‘rent’. Learned appellate Court also held that revenue officers had committed illegality while attesting mutations Ex. D-1 and Ex. D-2 in view of the fact that Clause 8.51 of the Himachal Pradesh Land Records Manual envisaged that in case a non-occupancy tenant wanted to make a voluntary surrender of his tenancy land in favour of Government under Section 31 of the Tenancy and Land Reforms Act, he shall apply to the Collector in Form LR 1 and on receipt of application, Collector shall record statement of tenant and thereafter, after satisfying himself that the said act was in fact a voluntary relinquishment of the land, will pass order that tenant had voluntarily surrendered his tenancy land in favour of the Government and thereafter Collector shall cause taking over of the possession of the land through Tehsildar concerned in favour of the Government. Learned appellate Court further held that the Rule also envisaged that even after taking over the possession under Sub rule (1), Collector is to cause necessary entry to be made in the Land Records substituting rights of the Government on the relinquished tenancy in place of the tenant and has to take possession of the land on behalf of State Government. Learned appellate Court further held that as the mutations entered into by revenue officer were in violation of the said clause, therefore, mutations were wrong and illegal. On these bases, learned appellate Court while dismissing the appeal filed by the State, upheld the judgment and decree passed by the learned trial Court. 13. Feeling aggrieved by the judgments and decrees passed by both the Courts below in favour of the plaintiffs/respondents, the defendant/appellant filed the present appeal. 14. I have heard the learned counsel for the parties and have also gone through the records as well as the judgments and decrees passed by both the Courts below. 15. I will deal with both the substantial questions of law independently. Substantial Question of Law No. 1: 16. Ex.D-1 and Ex.D-2 are mutations, which were entered into by the revenue officer in favour of defendant No. 1-State, as per which, the suit land was mutated in favour of defendant No. 1 on the count of the same being voluntarily relinquished by defendant No. 2 and Pirthi predecessor-in-interest of defendants No. 3 to 9 in favour of defendant No. 1. There is a concurrent finding returned by both the Courts below that there is no evidence on record to the effect that defendant No. 2 and Pirthi were ever inducted as tenants at will over the suit land. During the course of arguments, learned Additional Advocate General also could not draw the attention of this Court to any cogent evidence on record from which it could be inferred that defendant No. 2 and Pirthi were in fact inducted as tenants at will over the suit land by the plaintiffs or their predecessors-in-interest. As far as entries in Jamabandi for the year 1970-71 are concerned, the same are not sufficient to conclude that defendant No. 2 and Pirthi were in fact inducted as tenants over the suit land. 17. As far as entries in Jamabandi for the year 1970-71 are concerned, the same are not sufficient to conclude that defendant No. 2 and Pirthi were in fact inducted as tenants over the suit land. 17. Tenancy as it is understood is a bilateral agreement entered into between the landowner and the tenant and in lieu of tenancy, tenant has to pay rent to the landowner. There is no evidence led by defendant No. 1, from which it could be inferred that any rent in fact was being paid by defendant No. 2 and Pirthi to the plaintiffs in lieu of their allegedly being inducted as tenants at will over the suit land. Similarly, there is no agreement on record placed by the defendants from which it can be inferred that defendant No. 2 and Pirthi were inducted as tenants at will over the suit land. 18. On the contrary, both the learned Courts below have returned concurrent finding in favour of the plaintiffs and against the present appellant on the basis of evidence on record that the suit land in fact stood redeemed by plaintiffs on payment of mortgage money from defendant No. 2 and Pirthi way back in the year 1965. This fact has been duly proved and corroborated by the statements of plaintiffs’ witnesses. PW-1 Assa Ram has deposed in the Court that the suit land was mortgaged with Gurdass and Pirthi for an amount of Rs.550/- about 30 years back and in the year 1965, the said land was redeemed and possession thereof was also re-claimed by the plaintiffs. This witness has also deposed in the Court that Gurdass and Pirthi were never inducted as non-occupancy tenants over the suit land and said persons remained in possession of the suit land for a short span when the same was mortgaged to them. In his cross-examination, he has categorically denied that he was not in possession of the suit land on the spot. Further, this witness has also stated in his cross-examination that though it was correct that at the time of entry of mutation, Tehsildar visits the spot and calls the concerned party, however, plaintiffs were never called at the time of attestation of mutation. 19. Further, this witness has also stated in his cross-examination that though it was correct that at the time of entry of mutation, Tehsildar visits the spot and calls the concerned party, however, plaintiffs were never called at the time of attestation of mutation. 19. Sultana Ram, who has entered the witness box as PW-2, has also categorically stated that the suit land was mortgaged by plaintiffs to Gurdass and Pirthi for an amount of Rs.550/- and the mortgage stood redeemed and possession thereof was also re-claimed by the plaintiffs. This witness has also categorically stated that neither Gurdass nor Pirthi nor their successors-in-interest were ever inducted as non-occupancy tenants over the suit land. He also stated that he was Numberdar of the village for last 44 years and that as per their custom, mortgage used to be verbal only. Now incidentally, the suggestion which has been given to him in his cross-examination and which he admitted to be correct was that the suit land was with Pirthi and Gurdass as mortgage. He also denied the suggestion that possession of the suit property was not with the plaintiffs. 20. From the said evidence, it is apparent and evident that the mutations which were entered in favour of defendant No. 1 vide Ex. D-1 and Ex. D-2 were incorrectly entered because when defendant No. 2 and Pirthi, predecessor-in-interest of defendants No. 3 to 9 were not in possession of the suit land as tenants at will, there was no occasion for them to have had relinquished the said land in favour of defendant No. 1. 21. Besides this, there is no evidence placed on record by defendant No. 1 either ocular or documentary, from which it can be inferred that defendant No. 2 and Pirthi, predecessor-in-interest of defendants No. 3 to 9 were in fact inducted as tenants over the suit property and they had relinquished the suit land in favour of defendant No. 1 as per the provisions of Section 31 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. No witness has deposed in favour of the State from amongst the so called relinquishers to prove their case. This substantial question of law is decided accordingly. Substantial Question of Law No. 2: 22. Section 31 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 provides as under: “31. No witness has deposed in favour of the State from amongst the so called relinquishers to prove their case. This substantial question of law is decided accordingly. Substantial Question of Law No. 2: 22. Section 31 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 provides as under: “31. Relinquishment.- No relinquishment of a tenancy shall be made by a tenant in favour of landowner. However, if a tenant wants to make a voluntary surrender of his tenancy land, the same shall be in favour of the State Government. The State Government shall have right to induct any suitable tenant or landless agricultural labourer to the relinquished land in the manner to be prescribed.” 23. In the present case, as has already been held by me above, while deciding substantial question of law No. 1, it has been concurrently held by both the learned Courts below and rightly so that the suit land in fact was mortgaged by plaintiffs in favour of Gurdass and Pirthi for an amount of Rs.550/- and the mortgage was redeemed in the year 1965 and possession of the suit land was also taken by the plaintiffs from the mortgagees. On the other hand, defendant No. 1 has not been able to either justify or substantiate as to how revenue records, i.e. Jamabandi for the year 1970-71 reflected Gurdass and Pirthi to be as tenants over the suit land without there being any agreement entered into in this regard between the landowner and the tenant and there being any agreement to substantiate that the tenants were inducted as such in lieu of payment of rent and they paid any rent to the land owners. Therefore, in this view of the matter, when defendant No. 2 and Pirthi, predecessor-in- interest of defendants No. 3 to 9 were not having any interest over the suit property either as tenants or in any other capacity at the time when the suit property was relinquished in favour of defendant No. 1, it is not understood as to how they could have had relinquished the same in favour of defendant No. 1. It is settled law that a person pass over only that title over the property which he possesses. It is settled law that a person pass over only that title over the property which he possesses. In the present case, as defendant No. 2 and Pirthi were not having any title over the suit land as on the date when mutations were attested in favour of defendant No. 1, there was no occasion or right for them to have had relinquished the suit property in favour of defendant No. 1. 24. Besides this, as has also been held by the learned appellate Court, there is a procedure prescribed which has to be followed in case a tenant relinquishes the suit land in favour of the State Government. This procedure is prescribed in Clause 8.51 of the Himachal Pradesh Land Records Manual, which provides as under: “Relinquishment of land under Section 31 8.51(1) If a non-occupancy tenant wants to make a voluntary surrender of his tenancy land in favour of the Government under Section 31 of the Tenancy & L.R. Act, 1972, he shall apply to the Collector in Form LR 1. On receipt of the application, the Collector shall record the statement of the tenant and after having satisfied himself of the fact of voluntarily relinquishing, pass order that the tenant has voluntarily surrendered his tenancy land in favour of the Government. Thereafter, the Collector shall cause the taking over the possession of the land through the Tehsildar concerned in favour of the Government. (2) On having taken over the possession of the tenancy land under Sub-Rule (1), the Collector shall cause the necessary entry to be made in the Land Records substituting the right of the Government on the relinquished tenancy in place of the tenant and shall take possession of the land on behalf of the State Government. (3) The Collector shall sub-let the land to the landless agricultural labourers or to those tenants whose land holding shall fall short of one acre as a result of resumption of tenancy land by the landowners under Sub-Section(1) of Section 104. (Rule 12 of the H.P. Tenancy & L.R. Rules, 1975).” 25. In the present case, there is no material on record placed by the appellant from which it can be inferred that even otherwise at the time when the suit land was allegedly relinquished by defendant No. 2 and Pirthi, predecessor-in-interest of defendants No. 3 to 9 in favour of the State, the said procedure was followed. In the present case, there is no material on record placed by the appellant from which it can be inferred that even otherwise at the time when the suit land was allegedly relinquished by defendant No. 2 and Pirthi, predecessor-in-interest of defendants No. 3 to 9 in favour of the State, the said procedure was followed. Be that as it may, the fact of the matter still remains that when Gurdass and Pirthi were not tenants over the suit land at the time when mutations were entered into in favour of appellant/defendant No. 1 vide mutations Ex. D-1 and Ex. D-2, they could not have had relinquished the suit land in favour of the State and attestation of mutation vide Ex. D-1 and D-2 thus cannot be said to have had conferred upon the State any right over the suit land under the provisions of Section 31 of the Himachal Pradesh Land Records Manual. This substantial question of law is decided accordingly. 26. In view of the findings returned above, as there is no merit in the present appeal, the same is dismissed, so also miscellaneous applications, if any. No order as to costs.