JUDGMENT Ajay Mohan Goel, J. - By way of present appeal, State has challenged judgment and decree dated, 20.04.2004, passed by the Court of learned District Judge, Kangra at Dharamshala in Civil Appeal No. 91-K/XIII/2002, vide which learned Appellate Court while allowing the appeal filed by present respondents, decreed their suit for declaration and permanent prohibitory injunction so filed by present respondents, by setting aside judgment and decree, dated 30.08.2000, passed by the Court of learned Sub Judge 1st Class (1), Kangra in Civil Suit No. 97/97, whereby learned trial court had dismissed the suit for declaration and injunction filed by them. 2. This appeal was admitted on 14.12.2004 on the following substantial question of law:- "Whether misrepresentation of the relevant law and the consequential conclusion vitiated the judgment and decree under challenge?" 3. Brief facts necessary for adjudication of this appeal are that respondent-plaintiff (hereinafter referred to as ''the plaintiff'') filed a suit for declaration and injunction qua the land comprised in Khata No. 44 min, Khatauni No. 82, Khasra Nos. 236, 237, 338, plots 3 area measuring 0-07-09 hectares, situated at Mohal Baintlu, Mauza Bandi Tehsil and District Kangra, which was entered in the ownership of defendant-appellant (hereinafter referred to as "the appellant") as per Jamabandi for the year 1990-91. As per plaintiff, name of Smt. Kaulan Devi widow of Jayanti appeared as Gair Marusi in the column of possession and in the column of rent, amount of Rs. 10/- per year was indicated. Said Kaulan Devi was since dead. In her life time, she had executed a Will dated 23.2.1990 in favour of the plaintiff. Further as per plaintiff, Kaulan Devi had acquired proprietary rights during her lifetime and had bequeathed the property in favour of the plaintiff, who thereafter was in possession of the suit land as well as superstructures. Further as per plaintiff, entries of possession after the death of Kaulan Devi were only paper entries, whereas it was the plaintiff, who was in actual possession of the property and her name deserved to be entered in the column of possession. It was further the case of the plaintiff that entries of ownership in the name of defendant were also wrong as defendant ceased to be owner of the land in issue after coming into operation of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. It was further the case of the plaintiff that entries of ownership in the name of defendant were also wrong as defendant ceased to be owner of the land in issue after coming into operation of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. It was on these basis that suit was filed by the plaintiff seeking a decree of declaration to the effect that entry of ownership and possession be corrected in her favour and also for a decree of injunction restraining the defendant from dispossessing her. 4. The suit was resisted by the defendant, i.e., the appellant before this Court, inter alia, on the grounds that the suit land stood vested in the Government of Himachal Pradesh free from all encumbrances and plaintiff had no right over the same. According to defendant, Naudha Ram, Parkash Chand and Mohinder Singh, all sons of Jainti were recorded as tenants over the suit land in the year 1973. Vide mutation No. 40, Naudha Ram, Parkash Chand and Mohinder Singh wrongly relinquished their shares in favour of Kaulan Devi. Kaulan Devi never paid any rent qua the suit land and she (Kaulan Devi) otherwise also could not have executed any Will of the property which stood vested to the State Government free from all encumbrances under the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974. It was further mentioned in the written statement that Kaulan Devi could only execute a Will of her own property and not the land which was vested in the State of Himachal Pradesh and the plaintiff was not entitled to any relief, as was claimed in the suit. 5. By way of replication, the plaintiff reiterated her stand. 6. On the basis of pleadings of the parties and material placed on record, learned Trial Court framed the following issues:- "1. Whether the plaintiff is in possession of the suit land alongwith super structure standing thereon, on payment of rent on the basis of the will dated 23.2.1990? OPP. 2. Whether Smt. Kaulan Devi became the proprietor of the said land during her life time as alleged? OPP. 3. Whether the entry in the revenue record qua ownership and possession are wrong as alleged? OPP. 4. Whether the defendant has no right to dispossess the plaintiff from the suit land and structure as alleged? OPP. 5. OPP. 2. Whether Smt. Kaulan Devi became the proprietor of the said land during her life time as alleged? OPP. 3. Whether the entry in the revenue record qua ownership and possession are wrong as alleged? OPP. 4. Whether the defendant has no right to dispossess the plaintiff from the suit land and structure as alleged? OPP. 5. Whether the suit is not maintainable in the present form? OPD. 6. Whether the suit is not within time? OPD. 7. Whether the suit has not properly been valued for the purposes of court fee and jurisdiction? OPD. 8. Whether the Civil court has got no jurisdiction as alleged? OPD. 9. Whether the suit of the plaintiff is bad for misjoinder of parties? OPD. 10. Whether the suit of the plaintiff is bad for nonjoinder of necessary parties as alleged? OPD. 11. Relief." 7. Learned Trial Court returned the following findings on the said issues:- "Issue No.1 : No. Issue No.2 : No. Issue No.3 : No. Issue No.4 : No. Issue No.5 : Yes. Issue No.6 : Yes. Issue No.7 : No. Issue No.8 : No. Issue No.9 : No. Issue No.10 : No. Relief : Suit dismissed as per the operative part of the judgment." 8. The suit of the plaintiff was dismissed by learned trial court vide judgment and decree dated 30.8.2000. It was held by learned trial court that neither PW-1 nor any other witness was clear as to since when the suit land was in possession of Jainti as a Gair Marusi and further, who inducted him as such and to whom he used to pay rent. Learned trial court further held that plaintiff had tendered in evidence copy of Jamabandi for the year 1990-91, Ext. P1, in which the State of Himachal Pradesh was recorded as owner and Kaulan Devi was recorded to be Gair Marusi on rent of Rs. 10/- per year. Learned trial court held that it was not recorded in the Jamabandi as to whom said rent was being paid. Learned trial court also held that there was nothing on file to suggest that Kaulan Devi was paying the rent to the State of Himachal Pradesh. It further held that had the proprietary rights been conferred upon Kaulan Devi, then entries depicting her as tenant in the Jamabandi ought to have been deleted. Learned trial court also held that there was nothing on file to suggest that Kaulan Devi was paying the rent to the State of Himachal Pradesh. It further held that had the proprietary rights been conferred upon Kaulan Devi, then entries depicting her as tenant in the Jamabandi ought to have been deleted. Learned trial court further held that defendant''s witness Bhagwan Dass, Patwari of the area had deposed in the Court that earlier the suit land was owned by the Gram Panchayat and thereafter as per Ext. D-2, the same stood vested in the State of Himachal Pradesh. 9. After discussing other exhibits placed on record by defendant, it was held by learned trial court that ocular evidence as well as documentary evidence placed on record by defendant demonstrated that the suit land was recorded under the ownership of Gram Panchayat and Jainti was shown as Gair Marusi and thereafter the land was vested in the State of H.P. upon coming into force of the Himachal Pradesh Village and Common Lands Vesting and Utilization Act, 1974 (in short ''the Act'') on the basis of the statutory provisions of Section 3 of the Act. It was held by learned Trial Court that even if it is assumed that the land was under Gair Marusi of Jainti, even then as the land stood vested in the State of H.P. free from all encumbrances, there was no occasion for any succession of the land by the widow of Jainti or his sons. Learned Trial Court also held that there was nothing on record from which it could be inferred that Jainti was either a tenant over the suit land or he was paying any rent to the Gram Panchayat. It was further held by learned Trial Court that it was not clear as to when Jainti died and as to whether the land was succeeded by Kaulan Devi as his widow. It further held that in view of the provisions of the Act , as the said land vested in the State of H.P. free from all encumbrances, there was no question of Kaulan Devi having become proprietor of land during her lifetime, as was claimed by the plaintiff. It further held that in view of the provisions of the Act , as the said land vested in the State of H.P. free from all encumbrances, there was no question of Kaulan Devi having become proprietor of land during her lifetime, as was claimed by the plaintiff. Learned Trial Court also held that plaintiff was in fact claiming possession on payment of rent which itself demonstrated that even as per the plaintiff, Kaulan was not owner of the land and was in possession of the same in her capacity as a Gair Marusi. It was further held by learned Trial Court that as the land stood vested in the State Govt. of Himahcal Pradesh, there was no question of vestment of the same with the plaintiff or her predecessorin-interest Kaulan Devi. Any Will so executed by a person could not confer any right upon the plaintiff qua the property which stood vested in the State of H.P. Learned Trial Court further held that the Will was of no effect and no title could pass in favour of the plaintiff on the basis of the said Will. It was also held by the learned Trial Court that the plaintiff had failed to prove that the possession of the suit land was with her. 10. Feeling aggrieved by the judgment and decree so passed by learned Trial Court plaintiff filed an appeal. 11. Learned Appellate Court vide judgment and decree dated 20.4.2004 allowed the same and set aside the judgment and decree passed by learned Trial Court. While allowing the appeal, it was held by the learned Appellate Court that under Section 3 of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974, it is only the rights, title and interest of a land owner, which stand extinguished and land is vested in the State Govt. free from all encumbrances. It was further held by learned Appellate Court that the suit land was never recorded as Shamlat land so as to bring it within the ambit of Section 4 of the Punjab Village Common Lands Regulation Act, 1961 or under Section 3 of the Act. free from all encumbrances. It was further held by learned Appellate Court that the suit land was never recorded as Shamlat land so as to bring it within the ambit of Section 4 of the Punjab Village Common Lands Regulation Act, 1961 or under Section 3 of the Act. On these bases it was held by learned Appellate Court that suit land was never vested with any Panchayat nor it could vest in the State Government under Section 3 of the Act, as the Act came into force on 29 August, 1974 and the sons of late Jainti have become owners of the suit land prior to that on 21.2.1974 (wrongly typed in the judgment as 1994). It was further held by learned Appellate Court that suit land was relinquished by Nodha Ram, Parkash Chand and Mohinder in favour of the Kaulan Devi vide mutation No. 40, who executed a Will of her estate in favour of her daughter-in-law, i.e., the plaintiff. Learned Appellate Court further held that plaintiff had successfully proved on record that her mother-in-law Kaulan Devi executed a Will in her favour and thus, it was now the plaintiff who was owner in possession of the suit land and all entries to the contrary were illegal void and had no effect on the rights, title and interest qua the suit land. Thus, it was held by learned Appellate Court that the plaintiff was entitled for declaration that she was owner in possession of the suit land and she was also entitled to a decree of permanent prohibitory injunction to restrain the defendant from interfering in her proprietary rights. 12. Judgment and decree so passed by learned appellate court stands assailed by defendant by way of this Regular Second Appeal. 13. I have heard the learned Additional Advocate General for the State, as also learned Senior Counsel for the respondents and have also gone through the records, as also the judgments and decrees passed by the learned Courts below. 14. As already mentioned above, this appeal was admitted on 14.12.2004 on the following substantial question of law: "Whether misrepresentation of the relevant law and the consequential conclusion vitiated the judgment and decree under challenge?" 15. 14. As already mentioned above, this appeal was admitted on 14.12.2004 on the following substantial question of law: "Whether misrepresentation of the relevant law and the consequential conclusion vitiated the judgment and decree under challenge?" 15. A perusal of the judgment passed by learned Appellate Court demonstrates that the said Court has held that as the Panchayat was never owner of the suit land, no vestment of the said land could have taken place in favour of the State. It has further been held by learned Appellate Court that before coming into force of the Himachal Pradesh Tenancy and Land Reforms Act, 1972, sons of Jainti had become owner of the suit land prior to 21.2.1974. 16. A perusal of the plaint demonstrates that the case of the plaintiff was that the suit land was recorded in the ownership of defendant in the revenue records and that the name of Kaulan Devi, widow of Sh. Jainti Dass appeared as Gair Marusi in the column of possession and in the column of lagan, an amount of Rs. 10/- per year was indicated and this entry wherein defendant was being reflected in the column of ownership was incorrect as Kaulan Devi had acquired proprietary rights over the suit land during her life time and thereafter she had bequeathed the said property by way of Will dated 23.02.1990 in favour of the plaintiff. Further as per the plaintiff, she was in possession of the suit land, as also superstructures over the same and entry of possession after the death of Kaulan Devi was only a paper entry and entry of ownership in the name of defendant was wrong, as defendant ceased to be owner after coming into force of the Himachal Pradesh Tenancy and Land Reforms Act. 17. It is relevant to mention at this stage that the stand of the defendant was that the suit land stood vested in the State by virtue of operation of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 and that Kaulan Devi was not a nonoccupancy tenant over the suit land nor she had at any stage paid any rent in this regard. Learned Trial Court dismissed the suit by holding that the plaintiff had not been able to establish that Kaulan Devi was a non-occupancy tenant over the suit land against payment of rent and that after coming into operation of the Himachal Pradesh Tenancy and Land Reforms Act, proprietary rights automatically stood conferred upon her. Learned Trial Court also held that as Kaulan Devi was not owner of the property in issue, therefore, she could not have had bequeathed the same by way of Will in favour of the plaintiff. These findings have been reversed in appeal by the learned Appellate Court by holding that defendant had not produced any record whatsoever to show that the suit land was ever recorded as Shamlat land, so as to bring it within the ambit of Section 4 of the Punjab Village Common Land (Regulation) Act, 1961 or under Section 3 of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974. On these basis, learned Appellate Court held that the suit land never vested in any Panchayat and, therefore, it could not have vested in the State Government under Section 3 of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974. It has also been held by the learned Appellate Court that though receipts of payment of rent have not been produced, but it was not necessary that receipts were issued, because some times the State takes such amount by entering the payment in its record only. It further held that as the suit itself was filed in the year 1997, therefore, it could not be expected that old record like receipts etc. were maintained by the plaintiffappellant. On these basis, it held that it was not possible to agree with the findings of the learned Trial Court that the suit land had not been under the tenancy of late Sh. Jainti or his sons. It further held that when the Himachal Pradesh Tenancy and Land Reforms Act, 1972 came into force, sons of deceased Jainti were holding the suit land as Gair Marusi or as non-occupancy tenants on payment of rent and they accordingly became owners of the suit land by operation of law. 18. In my considered view, the findings returned by the learned Appellate Court are not sustainable. 18. In my considered view, the findings returned by the learned Appellate Court are not sustainable. Said findings are indeed a result of mis-appreciation of facts as also relevant law, which has led to an incorrect conclusion of the issue by the learned Appellate Court. In appeal, learned Appellate Court erred in not appreciating that it was not the State, which had filed the suit, but it was the appellant before it, who was the plaintiff. Learned Appellate Court erred in not appreciating that it was for the plaintiff to have had proved her case. 19. At the cost of repetition, I state that the case of the plaintiff was that her mother had acquired proprietary rights over the suit land, which subsequently stood bequeathed by her in favour of the plaintiff by way of a Will and that entries reflecting State in the column of ownership in the revenue records were incorrect. That being so, onus was upon the plaintiff to have had proved that her mother was firstly a non-occupancy tenant over the suit land against payment of rent and that after coming into force of the Himachal Pradesh Tenancy and Land Reforms Act, she became owner of the same. 20. Undisputedly, on the strength of the evidence on record, it cannot be said that the plaintiff was able to establish these facts. It is settled law that tenancy has to be proved either by way of agreement or by producing cogent evidence on record, from which it can be inferred that some rent was being paid in lieu of the tenancy. The factum of no evidence being on record to prove that any rent at any stage was paid by Kaulan Devi is not in dispute, because the same also finds mention in the judgment of the learned Appellate Court. Incidentally, whereas the case of the plaintiff was that proprietary rights qua the suit land stood conferred upon her mother, the conclusion arrived at by the learned Appellate Court is that sons of Jainti became owners of the suit land by efflux of law after coming into operation of the Himachal Pradesh Tenancy and Land Reforms Act. This was not the case set up by the plaintiff in the plaint, therefore, what has been held by the learned Appellate Court is beyond the pleadings of the parties. This was not the case set up by the plaintiff in the plaint, therefore, what has been held by the learned Appellate Court is beyond the pleadings of the parties. The findings returned by the learned Appellate Court about the suit land not having vested with the State Government under the provisions of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 are also based on conjectures and not any evidence produced on record by the plaintiff. The findings returned by the learned Appellate Court that defendant had not produced any record to show that the suit land was ever recorded as Shamlat land so as to bring it within the ambit of Section 4 of the Punjab Village Common Land (Regulation) Act, 1961 or under Section 3 of the Act are also beyond pleadings, because that was not the case set up by the plaintiff before the learned Court below. All this leads to but one conclusion that the judgment passed by the learned Appellate Court is beyond pleadings and is a result of misappreciation of the relevant law, i.e., the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 and is thus based on conjectures and surmises. 21. I have also perused the judgment passed by the learned Trial Court and have also gone through the evidence placed on record by the parties and in my considered view, the findings which had been returned by the learned Trial Court are duly borne out from the evidence on record. 22. Ex. P-2 which is copy of Jamabandi for the year 1967-68 clearly demonstrates that in the said Jamabandi, against the column of ownership, name of Panchayat was mentioned, in the column of possession, name of Jainti was entered as a non-occupancy tenant and in the column of rent Rs. 10/- per annum was mentioned. 23. Records further demonstrate that save and except copy of Jamabandis for the years 1967-68 and 1990-91, no other documentary evidence has been placed on record by the plaintiff. Thus, there is nothing on record produced by the plaintiff to demonstrate as to how and when Kaulan Devi was entered as a non-occupancy tenant over the suit land. The documentary evidence placed on record by the defendant demonstrate that earlier the suit land was owned by the Gram Panchayat and thereafter, the same stood vested in the State Government. Thus, there is nothing on record produced by the plaintiff to demonstrate as to how and when Kaulan Devi was entered as a non-occupancy tenant over the suit land. The documentary evidence placed on record by the defendant demonstrate that earlier the suit land was owned by the Gram Panchayat and thereafter, the same stood vested in the State Government. This is manifestly clear from Ex. D-6, which is a copy of mutation dated 05.08.1975. All these facts clearly demonstrate that the judgment passed by the learned Trial Court was substantiated from the evidence on record. On the other hand, as I have already mentioned above, I find that the judgment so passed by the learned Appellate Court, vide which it reversed the findings returned by the learned Trial Court not based on either pleadings or evidence on record. Substantial question of law is answered accordingly. 24. In view of my findings hereinabove, this appeal is allowed and the judgment and decree dated 20.04.2004, passed by the Court of learned District Judge, Kangra at Dharamshala in Civil Appeal No. 91-K/XIII/2002 is set aside, whereas the judgment and decree dated 30.08.2000, passed by the Court of learned Sub Judge, 1st Class (1), Kangra in Civil Suit No. 97/97 is upheld. Appeal stands disposed of in above terms, so also miscellaneous application(s), if any. Costs easy.