HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No.: 91 of 1996. Reserved: 9.5.2008. Decided on: 28.5.2008. Bhato alias Narbada ………Appellant. Versus Dharam Chand and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.B.K. Malhotra, Advocate. For respondents No.1 to 8: Mr.Ashwani Sharma, Advocate. V.K. Ahuja, J.: This is a regular second appeal filed by the appellant against the judgment and decree passed by the learned District Judge, Mandi, dated 20.1.1996, vide which he set aside the judgment and decree passed by the learned Sub Judge, Court No.II, Mandi, dated 17.1.1991, decreeing the suit of the appellant for permanent injunction, and the suit was accordingly dismissed. Briefly stated the facts of the case are that the appellant as plaintiff filed a suit for permanent injunction and in the alternative for possession. It was alleged by the plaintiff that the land measuring 14-7-0 bigha situated in khasra ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - numbers, as detailed in the plaint, was recorded in the ownership of the plaintiff but the names of defendants No.1 and 2 are wrongly recorded in the column of possession, which entries are wrong. The plaintiff alleged that she had purchased the suit land from the previous owners Chandravati alias Lavni etc. by a registered sale deed, dated 11.12.1974. She further alleged that she was already in possession of the suit land prior to the purchase, as is clear from copy of Rapat Rojnamcha and as the plaintiff was owner in possession of the suit land, the entries are liable to be corrected and the plaintiff is entitled to the relief claimed by her. Defendants pleaded that the suit land was in possession of defendant No.2 (husband of the plaintiff) and defendant No.1 in equal shares. It was denied that the suit land has been sold in favour of the plaintiff and if any such sale had been executed, it is null void and not binding on the right, title and interest of defendant No.1. In regard to Rapat Rojnamcha, it was submitted that mutation on the basis of Rapat Nos.305, 306 and 307 was rejected and since the defendants No.1 and 2 are in possession of the suit land in equal share, the plaintiff is not entitled to the relief claimed by her. The suit was tried by the learned trial Court which decreed the suit of the plaintiff for permanent injunction. On appeal, these findings were set aside by the learned First Appellate Court. I have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the appellant were that the defendants had relinquished their tenancy by way of Rapat No.306 and - 3 - the appellant had purchased the rights of ownership from the previous owner and as such she was entitled to the relief of injunction granted in her favour by the learned trial Court. It was also submitted that the entry of the Rapat Rojnamcha relinquishing the tenancy of defendants No.1 and 2 stood proved according to law and as such the findings to the contrary of the learned First Appellate Court are liable to be reversed. It was further submitted that the defendant had not appeared in the witness box to state that he had not made any statement before the Patwari and his Attorney had only appeared in the witness box and, therefore, adverse inference should be drawn against the defendants for not examining the defendant in evidence. It was submitted that once the Rapat had been lodged with the Patwari, which was an admission made by the defendants that they are not in possession of the suit land, the said Rapat should have been relied upon by the learned First Appellate Court and findings to the contrary are liable to be reversed. On the other hand, the learned counsel for the respondents had supported the judgment passed by the learned First Appellate Court supplementing it by the submissions that the relinquishment, if any, of possession by a tenant in favour of the owner could only have been made by a registered deed and, therefore, no reliance can be placed upon the Rapat Rojnamcha and the learned First Appellate Court had rightly not relied upon the said Rapat Rojnamcha. On appraisal of the findings recorded by the learned First Appellate Court, it is clear that the learned trial Court has referred to the oral and documentary evidence including the admission contained in the sale deed - 4 - Ext.PW-5/A and had observed that when the H.P. Tenancy and Land Reforms Act, 1974 came into force, the defendants were non-occupancy tenants immediately before commencement of the Act. Therefore, by virtue of Section 94 of the said Act, they were vested with the proprietary rights with respect to the suit land on the commencement of the Act and all the rights of the land owners in the land held under them by any occupancy tenant stood extinguished and these rights were deemed to have been vested in the occupancy tenants free from all encumbrances. The learned trial Court in coming to its conclusion that the defendants were not in possession since they had relinquished their possession on the basis of Rapat Rojnamcha No.306 was mainly swayed by the Rapat lodged by defendants No.1 and 2 with the Patwari that they are not in possession of the suit land, It is true that the defendant had not appeared in the witness to state that he did not make any Rapat with the Patwari, but his Attorney had appeared. The mere fact that such a Rapat was proved from the statement of PW-2 Ganga Ram, Field Kanungo, is not sufficient to hold that the said Rapat could be acted upon and relied upon as against the defendants to hold that they have admitted that they had relinquished the possession in favour of the owner. The said PW-2 clearly admitted that the value of the land in question was more than Rs.100/-, therefore, the registration was essential. The learned Appellate Court has also discussed that the mutation attested on the basis of Rapat No.306 was rejected by the Revenue Officer for want of registered deed, alongwith mutation No.129 on the basis of Rapat No.306. It was further observed that vide mutation No.133, Ext.D-3, - 5 - proprietary rights of the suit land were conferred in favour of Gokal and Padma to the equal extent on 23.12.1985. Once the defendants had become owners of the suit land in the year 1974 when the H.P. Tenancy and Land Reforms Act came into force, the subsequent sale deed dated 11.12.1976, Ext.PW-5/A, in favour of the plaintiff could not confer the ownership rights in favour of the plaintiff since the defendants had already become owners by operation of Law. Moreover, the relinquishment of tenancy rights, if any, could have been made only by a registered deed and not by lodging a Rapat with the Patwari and, therefore, the learned First Appellate Court had come to a right conclusion that the plaintiff had failed to prove that she was owner of the suit land and was entitled to the relief of injunction. Therefore, the suit was rightly dismissed by the learned First Appellate Court, which findings do not call for an interference by this Court and are liable to be upheld and the same are upheld accordingly. In view of the above discussion, there is no merit in the appeal filed by the appellant and the same is dismissed accordingly. However, parties are left to bear their own costs. May 28, 2008. (V.K. Ahuja), (TILAK) Judge.