HIGH COURT OF HIMACHAL PRADESH
Click here to view full judgement.
Jyotsna Rewal Dua,J. -
(1.) Name of defendant No. 2 was recorded as nonoccupancy tenant over the suit land on payment of 'Chakota' of Rs. 0.47 per kanal per year in revenue records w.e.f. 1968. In a suit filed by the plaintiff/land owner on 08.12.1995, inter alia, these revenue entries were challenged. Defendant No. 2 pleaded that the entries were incorporated in the revenue record on the basis of spot position, after the orders were passed in this regard by the competent authorities in accordance with law and that after coming into force of the H.P. Tenancy and Land Reforms Act, she had become owner of the land in question. Learned trial Court decreed the suit on 27.04.2006. The decree was reversed by the learned first appellate Court on 15.10.2008 and suit was dismissed. Aggrieved, plaintiff has filed this second appeal.
2(i) (a) Suit was filed by the appellant on 08.12.1995 for declaration to the effect that :-
i) He is owner in possession of the land measuring 22-75 hectares, comprised in Khasra Nos. 1055 and 1056, as entered in missal hakiyat bandobast jadid sani for the year 1992-93, situated in mauza Khad, Tehsil and District Una, H.P.
ii) Revenue entries appearing in the name of defendants No. 1 and 2 are wrong, hence have no binding effect on the right, title and interest of the plaintiff over the suit land.
iii) Consequential relief of permanent injunction for restraining the defendants from causing interference and dispossession with respect to the suit land.
iv) In alternative, decree for possession was claimed in case of plaintiff's dispossession by the defendants during the pendency of the suit.
2(i) (b) The basis of the suit was that :-
i) Plaintiff's predecessor was owner in possession of the suit land as entered in the jamabandi for the year 1966-67.
ii) Jamabandi for the year 1966-67 was made the basis for partition proceedings during consolidation, which took place in 1969-70. In these proceedings, joint holding of co-owners was partitioned and the suit land came to the share of the plaintiff.
iii) Defendant No. 1 i.e. Gurdas and Society never existed. It had no legal entity. Defendant No. 1 was never inducted as a tenant over the suit land either by the plaintiff or by his predecessor. Its name was wrongly reflected as such in the possessory column. The revenue record reflecting defendant No. 2 as tenant under defendant No. 1 is also incorrect as defendant No. 2 could not be inducted as tenant by defendant No. 1.
iv) Taking advantage of the revenue entries, defendants are interfering over the suit land.
2(ii) In their written statement, the defendants' stand was :-
a) The defendants were in cultivating possession over the suit land for the last 26 years, firstly as tenants and thereafter in the capacity as owners after coming into force of the H.P. Tenancy and Land Reforms Act, 1972.
b) The plaintiff, alongwith various others, owned 415 kanals 14 marlas of land. Nature of the land was banjar/ khadkana. Under the provisions of the East Punjab Utilization of Lands Act 1949, this land was allotted to harijans of village Khad by the State Government in 1965. The defendants being the harijans, were also amongst the allottees/tenants of the land and in possession thereof as such. The harijans/allottees/tenants had jointly re-claimed 415 kanals 14 marlas of land. However, the landowners, in connivance with the revenue staff, did not let the entries of cultivating possession of these persons recorded in the revenue record. It was only pursuant to the repeated applications moved by these persons that finally an order was passed by the Tehsildar Una on 24.09.1968 pursuant to which names of these persons were appropriately entered in the revenue record as nonoccupancy tenants. Accordingly, the entries also came in missal hakiat consolidation for 1973-74. The entries continued in misal hakiyat bandobast (Settlement) in 1992-93.
c) The land owners got their khewats partitioned during consolidation. Names of harijans/allottees/tenants were also recorded in partitioned khewats as 'Gurdas and Society'. The word 'Gurdas and Society' was innovated by the revenue staff for their own convenience. There were numerous tenants/allottees. It was not possible to enter names of several tenants in every khatauni paimaish. Therefore, under the leadership of Gurdas, son of Hiru, the names of all other allottees/tenants were construed to be included by consolidatedly referring them as 'Gurdas and Society'. This name, therefore, is not to be understood in the strict legal sense of the word 'Society' as defined under the Societies Act.
2(iii) The learned trial Court decreed the suit holding that the entries in missal hakiat bandobast jadid were wrong, incorrect and in violation of principles of natural justice. There was no legal basis for incorporating such entries. The column of rent was without any basis. The plaintiff was declared as owner in possession. Entries in the revenue record appearing in the name of defendants were declared illegal and void. Defendants were restrained from interfering in the suit land measuring 22-75 hectares.
2(iv) Learned first appellate Court reversed the decree and observed that the revenue entries in favour of respondents/defendants were continuous, uninterrupted, came in the revenue record on the basis of actual position on the spot and after the order was passed by the competent authorities in the regular proceedings in accordance with law. Resultantly, suit of the plaintiff was dismissed.
(3.) Aggrieved by the dismissal of his suit by the learned first appellate Court, the appellant/plaintiff has invoked the provisions of Section 100 of the Code of Civil Procedure. This regular second appeal was admitted on 02.03.2009 on the following questions of law :-
"1. Whether the Lower Appellate Court has committed grave illegality in putting undue reliance on Ex. D-4 which was illegal, null and void as the same was in violation of principle of natural justice as well as fundamental rules of procedure ?
2. Whether the Lower Appellate Court has committed grave error of jurisdiction in relying upon Ex. DW-2/A which had no presumption of truth being Khasra girdawari, especially when the entries in the revenue record were not proved to be lawfully substituted ?
3. Whether the Lower Appellate Court has acted in erroneous and perverse manner in putting wrong interpretation to the entries in the revenue record pertaining to "Gurdas and Society" which had no legal existence ? In absence of any contract of tenancy proved between individuals, has not Lower Appellate Court recorded erroneous and perverse findings that defendants were tenants over the suit land ? Are not such findings recorded based on no evidence hence erroneous, illegal and perverse ?
4. When the defendants took mutually contradictory pleas of tenancy as well as adverse possession and failed to prove the same, has not Lower Appellate Court acted in excess of jurisdiction in not at all considering the findings of the Trial Court whereby the plea of adverse possession of defendants were negated ?
Copyright © Regent Computronics Pvt.Ltd.