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Himachal Pradesh High Court · body

2019 DIGILAW 1567 (HP)

Prem Sagar v. Har Gopal Singh

2019-10-22

AJAY MOHAN GOEL

body2019
JUDGMENT : Ajay Mohan Goel, J. 1. By way of this appeal, appellants have prayed for the following reliefs:-- "It is, therefore, respectfully prayed that this appeal may very kindly be allowed and the impugned judgment and decree dated 04.10.2018 passed by learned Additional District Judge, Ghumarwin, District Bilaspur, H.P., in Civil Appeal No. 4-13 of 2018, whereby the judgment and decree dated 22.11.2017 passed by the learned Civil Judge (Senior Division), Ghumarwin, District Bilaspur, H.P. in Civil Suit No. 447-I of 1997/2016, decreeing the suit of the respondents/plaintiffs, has been upheld/affirmed, may be set aside consequently dismissing the suit of the appellants/defendants, in the interest of justice". 2. Brief facts necessary for the adjudication of the present appeal are that respondents herein filed a Civil Suit in the Court of learned Civil Judge (Senior Division), Court No. 1, Ghumarwin, District Bilaspur, H.P., i.e. Civil Suit No. 447-1 of 1997/2016, titled as Vasu Dev Singh and others v. Sant Ram and another, for declaration and permanent prohibitory injunction, against the present appellants/defendants, on the ground that plaintiffs are owners-in-possession of the land measuring 46-3 bighas, comprised in khasra No. 5, khata/khatauni Nos. 28/33 and 28/34, situated in Village Kayari, Pargana Tiun, Tehsil Ghumarwin, District Bilaspur, H.P. and revenue entries pertaining to 20 bighas of the suit land in favour of defendants were wrong, illegal and not binding upon the plaintiffs. Plaintiffs also prayed for consequential relief of prohibitory injunction for restraining the defendants from causing any interference in the suit land in any manner. 3. The case of the plaintiffs was that they were owners-in-possession of the suit land situated in Village Kayari. Plaintiffs had never agreed to give 20 bighas of the land out of the suit land to defendants and defendants were never inducted as tenants over the suit land by the plaintiffs. The revenue officials changed the revenue entries without consulting the plaintiffs at their back which were manipulated by the defendants. As per plaintiffs, defendants never remained in possession of the suit land. The fact of change in revenue entries came to their knowledge only in the month of October, 1997 when defendants openly threatened that as the revenue entries were in their name, therefore, they will cut grass over the suit land. As per plaintiffs, defendants never remained in possession of the suit land. The fact of change in revenue entries came to their knowledge only in the month of October, 1997 when defendants openly threatened that as the revenue entries were in their name, therefore, they will cut grass over the suit land. Thereafter, plaintiffs made enquiries and also obtained the revenue record which demonstrated that defendants had got the revenue entries changed through halqua patwari, who was not even competent to do so and without any prior intimation to any of the plaintiffs. 4. Appellants herein who were defendants before the learned trial Court contested the suit inter alia on the ground that defendants were non-occupancy tenants under the plaintiffs to the extent of 20 bighas of the suit land, who were inducted as tenants in the year 1986-87 on 18.10.1986. As per the defendants, they remained in possession of 20 bighas of land for last 35 years and alteration in revenue record in their favour was done at the instance of the plaintiffs as defendants were inducted as tenants by the plaintiffs and they were paying revenue as rent. Further, defendants also took objection with regard to maintainability of the Civil Suit. Defendants denied that they were threatening or forcibly dispossessing the plaintiffs over the suit land as according to them, plaintiffs were not in possession of the suit land. 5. On the basis of the pleadings of the parties, learned trial Court framed the following issues:-- "(1) Whether the plaintiff are owners-in-possession of the suit land? OPP. (2) Whether the plaintiffs are entitled for the relief of injunction, as prayed for? OPP. (3) Whether the defendants are tenants over 20 bighas out of the suit land, as alleged? OPD. (4) Whether the suit is not maintainable? OPD. (5) Whether the plaintiffs have no locus standi to file the present suit? OPD. (6) Whether the plaintiffs have no cause of action? OPD. (7) Whether the plaintiffs are estopped from filing the present suit by their own act and conduct? OPD. (8) Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD. (9) Whether the suit is within limitation? OPP. (10) Whether this court has no jurisdiction to try the present suit? OPD. (11) Relief". 6. (7) Whether the plaintiffs are estopped from filing the present suit by their own act and conduct? OPD. (8) Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD. (9) Whether the suit is within limitation? OPP. (10) Whether this court has no jurisdiction to try the present suit? OPD. (11) Relief". 6. On the basis of evidence led by the parties in support of their respective contentions, learned Trial Court returned the following findings on the issues so framed:-- “Issue No.1 Yes. Issue No.2 Yes. Issue No.3 No. Issue No.4 No. Issue No.5 No. Issue No.6 No. Issue No.7 No. Issue No.8 No. Issue No.9 No. Issue No.10 No. Relief The suit of the plaintiffs is decreed as per operative portion of this judgment”. 7. Learned trial Court decreed the suit in the following terms: In view of discussion and findings on the issues No. 1 to 10, supra, suit of the plaintiffs succeeds and the same is hereby decreed to the effect that declaration is made/granted that the plaintiffs are owners in possession of the suit land measuring 46-3 bighas comprised in khasra No. 5, khata/khatauni Nos. 28/33 and 28/34, situated in village Kayari, Pargana Tiun, Tehsil Ghumarwin, District Bilaspur, H.P. and the revenue entries incorporated in the revenue record qua 20 bighas of land out of the suit land in favour of the defendants reflecting them as non-occupancy tenants through their predecessor-in-interest are declared to be wrong, null and void and liable to be rectified/corrected accordingly. Any by way of consequential relief of permanent prohibitory injunction the defendants are hereby restrained from causing any sort of unlawful interference in the suit land in possession of the plaintiffs in any manner whatsoever. In the entirety of the facts and circumstances of the case, the parties are left to bear their own costs. Decree sheet be draw accordingly. The file after due completion be consigned to the records. 8. It held that as the issue raised in the suit had no concern with the proceedings as are envisaged under Chapter-X of the H.P. Tenancy and Land Reforms Act, therefore, the Civil Court was having jurisdiction to decide the lis. Decree sheet be draw accordingly. The file after due completion be consigned to the records. 8. It held that as the issue raised in the suit had no concern with the proceedings as are envisaged under Chapter-X of the H.P. Tenancy and Land Reforms Act, therefore, the Civil Court was having jurisdiction to decide the lis. While arriving at the said conclusion, it held that dispute pertaining to relationship of landlord and tenant had not arisen during the proceedings of conferment of proprietary rights upon the tenant and resumption of land by the land owners nor any order or other record of the proceedings in respect thereof passed under the provisions of H.P. Tenancy and Land Reforms Act, stood pleaded or adduced in evidence by the defendants. Learned trial Court also held that evidence adduced by the plaintiffs clearly demonstrated that plaintiffs were owners of the suit land and were entitled for possession of the suit land as defendants had failed to establish the factum of there being in actual or constructive possession over the disputed land of 20 bighas out of the suit land. Learned trial Court further held that no clear evidence was adduced by the defendants to demonstrate as to on which part of 20 bighas of entire suit land they were in possession as tenants, as claimed by them. It also held that the witnesses produced by the defendants failed to substantiate the claim of the defendants that the suit land was in possession of the defendants as tenants. Learned trial Court further held that defendants had not adduced any evidence to establish as to what rent was being paid by them as tenants to the landlord and at what time and by whom and to whom and at what place and in what manner, shape or kind the rent was being paid to the landlord. It further held that there was no evidence as to what kind of crop was sown over the disputed land. Learned trial Court also held that defendants had failed to substantiate on record that the changes which were effected in the revenue record in their favour were carried out in accordance with government instructions issued vide letter No. 10-5/73-II dated 04.09.1980. Learned trial Court also held that defendants had failed to substantiate on record that the changes which were effected in the revenue record in their favour were carried out in accordance with government instructions issued vide letter No. 10-5/73-II dated 04.09.1980. It also held that defendant No. 2(4), who entered the witness box as DW-1 was not aware as to what was sown in the disputed land, how much of the land was plain and how much of it was hilly and what rent was being paid of the disputed land. 9. On these basis, learned trial Court held that plaintiffs were lawful owners in possession of the suit land and the revenue entries incorporated in the revenue record qua 20 bighas of land out of the suit land in favour of defendants reflecting them as non-occupancy tenants through their predecessor-in-interest were wrong, null and void and were liable to be rectified/corrected. It also granted a consequential relief permanent prohibitory injunction in favour of the plaintiffs and against the defendants restraining the defendants from causing any unlawful interference upon the possession of the plaintiffs over the suit land. 10. In appeal, these findings were affirmed. 11. Learned Appellate Court upon re-appreciation of the pleadings as well as evidence on record and after perusal of the judgment passed by the learned trial Court held that defendants had grossly failed to substantiate their claim with regard to tenancy over the suit land, which formed the very backbone of their defence against the suit of the plaintiffs. 12. Learned Appellate Court held that the written statement filed by defendants was grossly sketchy and deficient. The averments made qua tenancy were vague and self-contradictory. Nothing was pleaded as to by whom the defendants were inducted as tenants. No Tatima of the land over which they were inducted as tenants and which they were cultivating, was filed alongwith the written statement. No averments were made in the written statement qua nature of rent being allegedly paid by the defendants to the land owners. One of the defendant Sohan Lal, under cross-examination as DW-1 had failed to state as to what was the nature and extent of the rent being paid. No averments were made in the written statement qua nature of rent being allegedly paid by the defendants to the land owners. One of the defendant Sohan Lal, under cross-examination as DW-1 had failed to state as to what was the nature and extent of the rent being paid. It held that the revenue documents in favour of defendants were bereft by any legal sanctity, since the procedure laid down and instructions pertaining to preparation of Khasra Girdawri had not been followed even to the slightest while preparing said revenue documents. It held that though presumption of correctness is attached to the revenue entries, however, said presumption of correctness is only in respect of those entries which are regularly made by the revenue officials in discharge of their day to day function. Learned Appellate Court also held that instructions contained in the Land Revenue Manual, if not followed while changing the revenue entries, rendered subsequent entries to be treated as wrong and illegal. While holding as such, it relied upon the judgment passed by this Court in Tulsa Singh v. Agya Ram and others, AIR 1994 HP 167 . 13. On these basis, learned Appellate Court while concurring with the findings returned by the learned trial Court, dismissed the appeal. 14. Feeling aggrieved, defendants have filed this appeal. 15. I have heard learned counsel for the parties and have also gone through the judgments and decrees passed by the learned Courts below. 16. Both the learned Courts below have returned concurrent findings in favour of the plaintiffs and against the defendants that plaintiffs are owners in possession of the suit land and defendants were interfering upon the same without any cause or title. Both the learned Courts below have held that plaintiffs were owners in possession of the suit land and defendants had miserably failed to demonstrate that they were ever inducted as tenants over 20 bighas of the suit land and they were non-occupancy tenants upon the same. Both the learned Courts below have held that defendants had failed to prove that any rent etc. was being paid by them or their predecessor-in-interest to the land owners, the plea of tenancy taken in the written statement was cryptic and vague, revenue entries reflecting defendants as such were not sustainable in law as they were entered into without complying with the instructions contained in the Land Revenue Manual. 17. was being paid by them or their predecessor-in-interest to the land owners, the plea of tenancy taken in the written statement was cryptic and vague, revenue entries reflecting defendants as such were not sustainable in law as they were entered into without complying with the instructions contained in the Land Revenue Manual. 17. During the course of arguments, learned counsel for the appellants could not demonstrate the findings so returned by the learned Courts below were perverse and not borne out from the record of the case. Whether or not the plaintiffs are owners in possession of the suit land, is a question of fact. Whether or not, defendants were inducted as tenants upon the suit land was also a question of fact. Whereas, plaintiffs have successfully proved that they were owners in possession of the suit land and defendants were interfering upon the same without any rhyme or reasons, defendants failed to prove by placing on record cogent evidence that they/their predecessor-in-interest were ever inducted as tenants over the suit land. That being the case, as there are concurrent findings returned in favour of the plaintiffs by the learned Courts below and the appellants have failed to demonstrate that these findings are perverse and not borne out from the record of the case, there is no substantial question of law involved in this appeal and the same is accordingly dismissed. Pending miscellaneous applications, if any, stand dismissed. Interim order, if any, also stands vacated.