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2023 DIGILAW 260 (HP)

Baldev Singh v. State of H. P.

2023-05-11

SATYEN VAIDYA

body2023
JUDGMENT : (Satyen Vaidya, J.) Heard. 2. By way of instant Regular Second Appeal under Section 100 of the Code of Civil Procedure, appellants have assailed the judgment and decree dated 23.04.2022 passed by learned Additional District Judge-II, Kangra at Dharamshala, District Kangra, H.P. in Civil Appeal RBT No. 19-J/XIII/20121/2018, whereby the judgment and decree dated 30.11.2017 passed by learned Civil Judge (Junior Division), Jawali in Civil Suit No. 261 of 2011 has been affirmed. 2. The appellants were the plaintiffs before the learned trial Court. Suit was filed by them against respondents/defendants seeking relief of declaration to the effect that they were owners in possession of the suit land as their predecessor-in-interest Shri Kihru was non occupancy tenant on the suit land under respondent No.1. Plaintiffs claimed acquisition of title over the suit land under the provisions of Himachal Pradesh Tenancy and Land Reforms Act, 1972. The contrary revenue entries were also challenged seeking direction for correction of such entries. In alternative, relief of permanent prohibitory injunction was also prayed. 3. Defendants had contested the claim of the plaintiffs by specifically denying the status of the plaintiffs or their predecessor-in-interest as tenant over the suit land or consequential acquisition of title under the H.P. Tenancy and Land Reforms Act, 1972. Revenue entries favouring plaintiffs were termed as wrong being stray entries. Their correction during settlement was justified being in accordance with the factual position existing on the spot. 4. Learned trial Court framed the following issues. 1. Whether predecessor-in-interest of the plaintiffs namely Kihru was Gair Marusi qua the suit land? OPP. 2. Whether existing revenue entries are wrong, illegal, null & void and those have to be corrected? OPP. 3. Whether plaintiffs have become owners of the suit land by operation of law? OPP. 4. Whether plaintiffs are entitled for the relief of permanent prohibitory injunction as prayed for? OPP. 5. Whether plaintiffs have no cause of action/locus standi to file the present suit? OPP. 6. Whether plaintiffs are estopped by their act & conduct to file the present suit? OPD. 7. Whether the suit of plaintiffs is not maintainable? OPD. 8. Whether the plaintiffs have not come to the Court with clean hands and suppressed material facts? OPD. 9. Relief. 6. All issues except issue No.5 were decided in negative and suit of the plaintiffs was dismissed. OPD. 7. Whether the suit of plaintiffs is not maintainable? OPD. 8. Whether the plaintiffs have not come to the Court with clean hands and suppressed material facts? OPD. 9. Relief. 6. All issues except issue No.5 were decided in negative and suit of the plaintiffs was dismissed. The plea of tenancy raised by plaintiffs was held to be not established. 7. First appeal filed on behalf of the plaintiffs was dismissed by upholding the findings returned by learned trial Court. Learned First Appellate Court after appreciation of evidence again reiterated that the tenancy in favour of plaintiffs or their predecessor-in-interest over the suit land was not established. No basis for incorporation of entry of tenancy in favour of the predecessor-in-interest of the plaintiffs in jamabandi for the year 1965-66 was held to exist. 8. I have gone through the records and have not found any illegality or perversity in the concurrent findings recorded by learned First Appellate Court and learned Trial Court. 9. Creation of tenancy can only be by way of bilateral agreement. Proof of express and implied consent of the landowner is imperative. In the absence of such proof, plea of tenancy cannot succeed. The landowner, in the facts of instant case, is the State. The creation of tenancy is stated to date back to the year 1965-66. Admittedly, no tenancy could have been created by the State de-hors the prevalent laws. Plaintiffs have miserably failed to prove the specific conduct of the respondent(s) which had effect of creation of tenancy in favour of their predecessor-in-interest. Needless to say that under the State, tenancy cannot be assumed to have been created save and except in accordance with law and definitely it could not have been by simple oral permission. Thus, when the plaintiffs had failed to prove the creation of tenancy in favour of their predecessor-in-interest by respondents/State, they could not succeed in the suit simply by taking benefit of the revenue entries which existed for few years. Once, the very basis of initial revenue entries was not legal, no presumption of truth could be attached to such entries. 10. Learned counsel for the appellants/plaintiffs lastly made an endeavour to persuade this Court by contending that the change of revenue entries during the years 1984-85 without putting the plaintiffs to notice cannot sustain. Once, the very basis of initial revenue entries was not legal, no presumption of truth could be attached to such entries. 10. Learned counsel for the appellants/plaintiffs lastly made an endeavour to persuade this Court by contending that the change of revenue entries during the years 1984-85 without putting the plaintiffs to notice cannot sustain. The argument so raised also deserves to be rejected for the reason that there was no requirement to issue notice to the plaintiff for changing such revenue entries, which had no legal basis. The illegal entries in the revenue records were nonest and had not created any right in favour of plaintiffs. 11. It is more than settled that substantial question of law should have foundation in pleadings, should emerge from substantial findings of facts and should not merely be a proposition of law, but should be a debatable question having bearing on the merits of the case. 12. No question of law much less a substantial question of law has arisen in the case. The findings recorded by learned Courts below are in conformity with the material on record and do not call for interference. 13. In the light of above discussion, I find no merit in the appeal and the same is dismissed. Judgment and Decree passed by both the learned Courts below are affirmed. Pending applications, if any, shall also stand disposed of. Records be sent back forthwith. Decree sheet be prepared accordingly.