HIGH COURT OF HIMACHAL PRADESH
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DEVINDER GUPTA,J. -
(1.) This is plaintiffs Second Appeal against the judgment and decree passed on June 22, 1981, by District Judge, Hamirpur and Una Districts at Una, dismissing his appeal and thereby confirming the judgment and decree passed on May 13, 1977 by Senior Sub -Judge, Una, dismissing his suit.
(2.) The plaintiff filed suit claiming a decree for declaration to the effect that he was owner in possession of eight plots of land measuring 32 kanals 15 marlas comprised in Khasra Nos. 207, 20X, 209, 253, 271, 276, 290 and 291 situate in village Bhadori within tehsil and District Una. By way of consequential he claimed a decree for prohibitory injunction restraining the defendants from interfering with his possession and in the alternative claimed a decree for possession in case he was found to have been dispossessed It was averred in the plaint that the defendants in connivance with Halqa Patwari, Bhadori, got themselves recorded as tenant -at -will under the plaintiff on payment of Rs 80 per annum as Chakota from Rabi 1971, which entry was factually incorrect as the plaintiff never inducted them as tenants and that he was the sole owner in occupation of the property and that now for the last about two years, prior to the institution of the suit, taking undue advantage of the wrong entries in the revenue records, the defendants had started threatening the plaintiff of being dispossessed which necessitated him in coming to the Court for claiming the reliefs. The suit was instituted on January 15, 1976 and was contested by the defendants by pleading that they were in possession of the suit property as tenants at -will under the plaintiff and had become its owner on coming into force of the Himachal Pradesh Tenancy and Land Reforms Act (hereinafter to be referred as the Act) and were holding the property as such. They also took up a legal plea that the suit was barred under the provisions of the Act and the Civil Court had no jurisdiction to entertain and decide the suit Plaintiff presented replication by controverting the allegations made in the written statement and alleging that there was no question of defendants being in occupation of the property as the land was described in the revenue records as vacant and moreover the defendants were not agriculturists but were businessmen and were never inducted as tenants on the property by him. The trial Court dismissed the suit holding the defendants to be tenants on the suit property under the plaintiff and having become its owner on coming into force of the Act. So far as the legal objections about the competency of the Civil Court to bear and decide the suit and its maintainability was concerned, the same were not pressed by the defendants and were decided against them The lower appellate Court dismissed the appeal of the plaintiff by upholding the judgment and decree of the trial Court and confirming the finding of tenancy. Though it held that there was no evidence of creation of tenancy or of payment of rent by defendants to the plaintiff yet there were as many as six factors available on record which were sufficient to come to the conclusion that the property was occupied by the defendants as tenants under the plaintiff The plaintiff has preferred the present appeal challenging the findings recorded by both the Courts below.
(3.) It has been argued on behalf of the appellant that the findings of fact recorded by the Courts below to the effect that the defendants were in occupation of the property as tenants are based upon inadmissible evidence. The documentary evidence relied upon by the Courts below, namely, the entries in the revenue record were forged which is apparent on the evidence on record and as the contract of tenancy had neither been alleged nor proved, as rightly held by the lower appellate Court, therefore, the judgment and decree passed by the Courts below were liable to be set aside. In so far as six factors enumerated by the lower appellate Court are concerned, it was submitted that they were neither relevant nor were conclusive to assume that the defendant were holding the property as tenants. On behalf of the respondents, it was urged that the civil court had no jurisdiction to entertain and decide the suit as proprietary rights had been conferred upon the defendants under the provisions of the Act and the appellant having admitted the conferment of such rights upon the respondents, it was necessary for the plaintiff to have challenged such order, if so permissible in law, within a period of one year. It was further contended that no interference was called for with the concurrent findings of fact recorded by the Courts below.;
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