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2019 DIGILAW 1029 (HP)

Dina Nath v. Gian Chand

2019-07-25

SURESHWAR THAKUR

body2019
JUDGMENT : Sureshwar Thakur, J. The defendant/appellant herein (for short the defendant), upon, suffering adversarial verdict(s), vis-a-vis, the plaintiff's suit, for declaration, and, permanent injunction, vis-a-vis, the land comprised in Khata No. 108 min, Khatauni No. 130 , Khasra No. 1315/1157, measuring 6 marlas, situated in Tika Paplah, Mouza Mewa, Tehsil Bhoranj, District Hamirpur, H.P. (for short "suit khasra number), hence, through the instant RSA, he, strives to beget reversal(s) thereof. 2. Brief facts of the case are that respondents herein/ plaintiffs (for short "the plaintiffs), filed a suit for declaration and permanent injunction with respect to the suit khasra numbers. The entry regarding the tenancy as non-occupancy tenant in favour of the defendant in the column of possession is wrong, illegal and liable to the set aside. The entry incorporated in connivance with the revenue authorities, behind the back of the plaintiffs are mere paper entries. 3. The defendant contested the suit by taking preliminary objections qua locus-standi maintainability, limitation, non-joinder and mis-joinder of necessary parties. On merits, he avers that he is coming in possession over the suit land from the time of their ancestors. The father of the defendant had constructed his abdai over the suit khasra numbers about 50 years back, and, that construction now has collapsed. The defendant is trying to raise construction over the old foundation. The rent in respect of tenancy used to pay in cash. The defendant has already raised four pillars over the khasra numbers upto the height of 20 feet in the year 2008 and the foundations of two pillars have also been laid. The plaintiffs had not raised any objection at that time. The plaintiffs have no concern with the suit land and the revenue entires are valid. The plaintiffs were well aware of old possession of the defendant and the suit deserves to be dismissed. 4. The plaintiffs filed replication in which they have reasserted and reiterated the averments made in the plaint. 5. On the pleadings of the parties, following issues were framed by the learned trial Court. 1. Whether the plaintiffs are owners in possession of the suit land as payed for? OPP 2. Whether the defendant is interfering with the suit land and raising construction over the same without any right title and interest? OPP 3. Whether the plaintiffs have no locus standi to file the present suit, as alleged? OPD 4. 1. Whether the plaintiffs are owners in possession of the suit land as payed for? OPP 2. Whether the defendant is interfering with the suit land and raising construction over the same without any right title and interest? OPP 3. Whether the plaintiffs have no locus standi to file the present suit, as alleged? OPD 4. Whether the suit is not maintainable? OPD 5. Whether the suit is barred by limitation ? OPD 6. Whether the suit is bad for non-joinder of necessary parties, as alleged? OPD 7. whether defendant has become owner under the provisions of HP Tenancy and Land Reforms Act, if so, its effect? OPD 8. Whether the plaintiffs have not come to the Court with clean hands and have suppressed the material facts from the Court, if so, its effect? OPD. 9. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court, decreed the plaintiffs' suit. In an appeal, preferred therefrom, by the plaintiffs, before the learned First Appellate Court, the latter Court dismissed the appeal, and, affirmed the findings recorded by the learned trial Court. 7. Now defendant instituted the instant Regular Second Appeal before this Court, wherein, he assails the findings recorded by the learned Courts below. 8. In contemporaneity, vis-a-vis, the coming into force, of, the HP Tenancy and Land Reforms Act, 1972, (for short "the act'), with, statutory contemplations borne therein, hence, empowering qua evidently thereat rather recorded 'Gair Maurusi' tenant, to, stake, for, statutory conferment of proprietary rights upon him, (a) however, the afore, statutory facilitations bestowable upon the afore proven trite statutory ingredients, would be sparked, upon (b) the Jamabandi prepared in contemporaneity, vis-a-vis, the year 1972 rather whereat, the afore statute, came into force, and, it carrying therein, the afore statutory enablements, vis-a-vis, evidently thereat recorded 'Gair Maurusi', also, making hence visible graphic depictions, qua the litigant concerned, being reflected therein, as, a 'Gair Maurusi'. However, a perusal of, the, apposite jamabandi appertaining, to, the year 1976-1977, whereat the defendant or his predecessor-in-interest, were rather enjoined, to be reflected therein, to, carry the description, of, 'Gair Maurusi', does not, unfold, qua his or his predecessor-in-interest being recorded, as, a 'Gair Maurusi'. Consequently, the benefit of the afore statutory mandate, was not bestowable, upon, the aggrieved defendant. 9. Be that as it may through an order borne in Ex. Consequently, the benefit of the afore statutory mandate, was not bestowable, upon, the aggrieved defendant. 9. Be that as it may through an order borne in Ex. DA and recorded, on 23.7.1987, hence by the Land Reforms Officer, the aggrieved defendant, was pronounced to be a 'Gair Maurusi' upon the suit khasra numbers, and, the quantum of rent determined therein, is borne in a sum of Rs.0-02 paisa per annum. The afore order has been aptly concluded, by the Courts below, to be legally frail, as, it is made, without, the respective presence(s) therebefore, of all the affected/aggrieved therefrom. Even if the Land Reforms Officer, preceding his making Ex.DA, has strived to ensure service, of, the aggrieved, and, affected landlords, through printing of a notice, in, a daily news paper nomenclatured, as "Beerpratap", (i) however the afore proceedings drawn by the Land Reforms Officer, hence preceding his ordering for service of the affected landlords, through publication, of, a notice in the afore news paper, (ii) hence, does not unfold, that he had prior thereto recoursed the apt initial mechanism, for, ensuring their service, through ordinary mode, and, rather with his failing to recourse, the afore prior thereto, mode of personal service, through ordinary mode, upon, the aggrieved/affected landlords, (iii) and whereafter he could legitimize his recoursing service through publication, of, a, notice in the afore news paper. However, reiteratedly, when the afore peremptorily enjoined initial mode of service, upon, the aggrieved landlords remains unrecoursed, thereupon it is enigmatic, qua his yet proceeding, to, ensure service of landlords through printing of , a, notice in the afore news paper. 10. Further more, the afore enigma also begets, a further inference qua hence the Land Reforms Officer concerned, rather colluding with the defendant, in, his proceeding, to, make the order borne in Ex. DA. 11. Even otherwise the validity of the afore order, is rid, vis-a-vis, its legal efficacy, if any, as, unless evidence existed, before the afore Land Reforms Officer, vis-a-vis the existence, of, a bilateral relation of landlord, and, tenant inter-se, the contesting litigants, and, sparked by the tenant evidently liquidating to the landlords, rent, vis-a-vis, the suit khasra numbers either in cash or in kind, (i) thereupon the afore order embodied in Ex. DA, wherethrough, the defendant, was declared to be, a, non-occupancy tenant, vis-a-vis, the suit khasra numbers, would be ingrained, with, a gross vice of invalidation. DA, wherethrough, the defendant, was declared to be, a, non-occupancy tenant, vis-a-vis, the suit khasra numbers, would be ingrained, with, a gross vice of invalidation. For determining whether the afore imperative bilateral relation, of, landlord and tenant inter-se the contesting litigants, hence existed, and, sparked by the tenant evidently liquidating to the landlords rent, vis-a-vis, the suit khasra numbers, in cash or in kind, an allusion, is required to be made, to the testification, borne in the cross-examination of the defendant, (i) wherein he has echoed, qua his father being tenant under Kanshi Ram, thereupon, he is to be inferred, to, be holding, 1/4th share in the suit khasra numbers, as, the afore kanshi Ram is depicted in the apposite jamabandi to be holding only 1/4th share in the suit khasra numbers (ii) and thereafter he is to be concluded to, upon, the demise of afore Kanshi Ram, holding tenancy only under one amongst his legal representative i.e Dharam Chand, as, in consonance therewith he has rendered echoings (iii) thereupon, his testimony makes apparent emergence(s) vis-a-vis (a) his not claiming to be, a, tenant, vis-a-vis, the entire suit khasra numbers rather qua his holding tenancy, only under, one amongst his legal representative i.e Dharam Chand, (iv) and, the afore admission occurring, in his cross-examination, nails an firm inference, qua, the defendant's espousal, and, also the declaration embodied in Ex. DA, qua his being 'Gair Maurusi' upon, the suit land being obviously perse frail, and, suffering invalidation. 12. Further there onwards with the defendant, making an echoing in his testification qua his landlord, one Kanshi Ram abandoning or waiving his claim of rent, from, him. Consequently, the afore echoing in his testifiation, erodes, the validity of the pleadings cast by him, in his written-statement, that, rent in cash kind was paid by him to his landlords, (a) and, thereupon the quantification of rent in Ex. DA, vis-a-vis, the suit khasra numbers also suffers omnibus falsification. Further sequel thereof, is, that with hence the imperative requirement, of, coming into emergence(s), of, the afore bilateral relation, of, landlord and tenant, inter-se, the contesting litigants, sparked by the tenant, evidently liquidating to the landlords rent, vis-avis, the suit khasra numbers in cash or in kind, hence remaining un-satiated, (b) thereupon order borne in Ex. Further sequel thereof, is, that with hence the imperative requirement, of, coming into emergence(s), of, the afore bilateral relation, of, landlord and tenant, inter-se, the contesting litigants, sparked by the tenant, evidently liquidating to the landlords rent, vis-avis, the suit khasra numbers in cash or in kind, hence remaining un-satiated, (b) thereupon order borne in Ex. DA, suffers complete invalidation, and, moreso when, from, six marlas of land, five marlas, was, Banjar, and, the afore classification, appertaining to five marlas of land, rendering it unsuitable, for, cultivation, (c) thereupon with the afore portion of the suit land, being not cultivable, hence it is to be concluded qua the defendant, in the purported capacity, of, 'Gair Maurusi' not hence cultivating five marlas of land rather classified, as, Banjar kadim, (d) and thereonwards, it can also be concluded that he was not rearing crops therefrom, nor hence any part of, the, crops reared therefrom, was paid as rent in kind/ cash, to, the landlords. No question of law much less any substantial question of law, hence, arise, for, determination. 13. In view of the above, there is no merit in this appeal, and, the same is accordingly dismissed. Impugned verdicts and decrees are maintained and affirmed. Records be sent back.