IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 185 of 1995 Decided on : April 26, 2010 Roshani Devi …Appellant Versus Mangat Ram (dead) through LRs ...Respondents Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant: Mr. Subhash Sharma, Advocate. For the Respondents: Mr. N.K. Thakur, Advocate. Surjit Singh, Judge (oral) This appeal by Roshni Devi, hereinafter called plaintiff, is directed against the judgment and decree, dated 3.2.1995, of learned District Judge, Una, whereby accepting the appeal filed by late Shri Mangat Ram and his wife Rukman Devi against the judgment and decree, dated 23.1.1990 of learned Sub Judge, Una, the said judgment and decree of learned Sub Judge, Una, have been set aside and the suit of the appellant-plaintiff dismissed. 2. Appellant-plaintiff filed a suit for declaration that she was joint owner in possession of land measuring 3 Kanals, bearing Khasra Nos. 1043 and 1045, as per entry in Jamabandi for the year 1977-78, pertaining to village Arniala, Tehsil and District, Una, hereinafter referred to as suit land, and that the order dated 8.4.1987 of Tehsildar Whether reporters of the local papers may be allowed to see the judgment? …2… (Settlement), Una, passed in case No.147 of 1986, showing respondent-defendant Mangat Ram as tenant in respect of the entire suit land was illegal, void and of no consequence upon her rights, on account of the said order having been passed against the factual position as also behind her back and without affording any opportunity to her to oppose the application filed by said Mangat Ram, for correction of entries. 3. Case of the appellant-plaintiff was that she was joint owner in possession to the extent of 1/6th share in the suit land and that respondent-defendant Mangat Ram had never been a tenant on her share in the suit land at any point of time. It was pleaded that in Jamabandi for the year 1972-73, she had been recorded as joint owner in possession to the extent of her aforesaid share, but respondent Mangat Ram made an application to Tehsildar (Settlement), Una, some time in the year 1986 and got entries in the jamabandi changed, per which he was shown as tenant on the entire suit land. It was alleged that order, copy Ext. D-1, to this effect was passed on 8.4.1987, without serving a notice of the application upon her. 4. Respondent-defendant Mangat Ram and his wife Rukman Devi, who too had been impleaded as defendant, contested the suit. They pleaded that Mangat Ram was a tenant on the entire suit land, per entry in Misal Hakiat for the year 1968-69, copy Ext. D-3, but in Rabi 1971, his name had been wrongly omitted from Khasra Girdwari and …3… when he came to know about the omission of his name, during settlement, he moved an application to the Tehsildar (Settlement) and order dated 8.4.1987, copy Ext. D-1, was passed in his favour. 5. Various issues were framed on the pleadings of the parties by the trial Court. At the end of trial, it came to the conclusion that respondent-defendant Mangat Ram had never been inducted as tenant on the suit land, particularly in respect of the share of plaintiff-appellant and, hence, the entry in Misal Hakiat for the year 1968-69, was without any basis and, therefore, Tehsildar (Settlement) was not justified in passing order, Ext. D-1, for correction of entries. Consequently, the suit was decreed. 6. Appeal was filed by Mangat Ram and his wife Rukman Devi in the Court of District Judge. Learned District Judge has concluded that since in Misal Hakiat for the year 1968-69, Mangat Ram’s name figured as tenant in respect of the suit land, the same could not have been omitted from Khasra Girdawari, pertaining to Rabi, 1971 onwards and, so, Tehsildar (Settlement) rightly passed the order correcting the entry. 7. Appeal was admitted on the following substantial questions of law: “1. Whether the order dated 8.4.1987 passed at the back of the appellant/plaintiff by the Tehsildar (Settlement), Una vide Ext. D-1 is valid in the eyes of law, if so, its effect. …4… 2. Whether the respondent/defendant No.2 can be held as a tenant at Will on payment of rent in view of the Exts. placed on record by the appellant/plaintiff. 3. Whether the appellant/plaintiff and respondent/defendant No.2 are joint owners in possession of the suit land and the respondent/defendant No.1 holds no right, title and interest in the suit land. 4. Whether there was any necessity for respondent/defendant No.2 to have purchased a part of the suit land from the owner, Harminder Singh when her husband i.e. respondent/defendant No.1 was already a tenant as per respondent/ defendants’ case.” 8. I have heard the learned counsel for the parties and gone through the record. 9. All the substantial questions of law on which the appeal has been admitted are interconnected. 10. Earliest Jamabandi, which has been made available on record, is for the year 1958-59, copy Ext. D-2. As per this Jamabandi, land measuring 1 Kanal 10 Marlas, bearing Khasra Nos. 1186 and 1188 (these numbers have not been connected with the suit land), was jointly owned by Kapur Chand and Beli to the extent of ½ share each. Learned counsel for the respondents-defendants submits that when consolidation took place in the area and Misal …5… Hakiat for the year 1968-69, copy Ext. D-3, was prepared, Kapur Chand was allotted the suit land in lieu of the land described in Jamabandi for the year 1958-59, copy Ext. D-2, and some other land and, therefore, Mangat Ram, who was recorded as tenant in Ext.D-2, was recorded as tenant in respect of the suit land. 11. A reading of Misal Hakiat for the year 1968-69, Ext. D-3, shows that total area of the land is 3 Kanals. Half of this land is Barani and the other half is irrigated. Land described in Jamabandi for the year 1958-59, copy Ext. D-2, is Barani and its total area is 1 Kanal 10 Marlas. Now, if Mangat Ram’s tenancy in respect of the suit land, as entered in Ext. D-3 is connected with the land entered in Ext. D-2, as submitted by the learned counsel for the respondents-defendants, defendant Mangat Ram could not have been a tenant on 3 Kanals land, but only in respect of 1 Kanal 10 Marlas Barani land. In Misal Hakiat, copy Ext. D-3, 1 Kanal 10 Marlas Barani land is described by Khasra No.1045. It may be stated that Mangat Ram alone was not recorded as tenant in Jamabandi for the year 1958- 59, in respect of 1 Kanal 10 Marlas Barani land, but he was recorded as co-tenant with three other persons and his share in joint tenancy was to the extent of half only. 12. Admittedly, Mangat Ram’s wife Rukman Devi, in the year 1969, purchased 1 Kanal 10 Marlas land, vide sale deed Ext. P-6 from Setu Ram, one of the two sons of late Kapur Chand. Mutation in respect of this sale was attested …6… on 5.4.1971, as per note in red ink in Ext. D-3. By means of this sale and mutation, Rukman Devi wife of Mangat Ram became owner to the extent of half share in the suit land. In Rabi 1971, after the attestation of mutation dated 5.4.1971, name of respondent Mangat Ram, which figured in Misal Hakiat for the year 1968-69, copy Ext. D-3, was omitted from Khasra Girdawari. A note was recorded in Khasra Girdawari that half of the suit land had been purchased by Rukman Devi wife of respondent-defendant Mangat Ram. It appears that this was the reason for omission of the name of respondent-defendant Mangat Ram, as tenant. Also, it appears that the name of respondent-defendant was omitted in respect of the entire suit land, because as already noticed, he was a tenant at the most in respect of half of the suit land, as depicted in Jamabandi for the year 1958-59, copy Ext. D-2. 13. On the basis of the aforesaid mutation as also the change in Khasra Girdawari, name of the respondent- defendant Mangat Ram was omitted from the subsequent Jamabandi for the year 1972-73, copy Ext. P2. After that in the year 1979, Rukman Devi, purchased 1/3rd of the suit land to the extent of 1 Kanal area from Harminder Singh, a brother of appellant-plaintiff. It needs to be noticed that this purchase was made by the wife of respondent-defendant, after H.P. Tenancy and Land Reforms Act had come into force. Section 104 of the said Act provides for automatic conferment of proprietary rights of land owners upon the …7… tenants on payment of some nominal amount of money, as compensation. Now, if the respondent-defendant was tenant in respect of appellant-plaintiff’s or Harminder Singh’s share in the suit land, where was the need for him to have purchased Harminder Singh’s share in the suit land through his wife for a sale consideration of Rs.4500/-, vide sale deed Ext. P-7 in the year 1979, when H.P. Tenancy and Land Reforms Act, was in force. Tehsildar (Settlement), Una, while passing order Ext. D-1 and the first Appellate Court while accepting the appeal did not take into consideration the above stated factual position, which is borne out from the Jamabandi for the year 1958-59, copy Ext. D-2, and subsequent Jamabandis and Khasra Girdawaris. Learned trial Court took notice of all these facts and came to the right conclusion. 14. For the foregoing reasons, all the substantial questions of law, on which appeal has been admitted, are answered in favour of the appellant. Consequently, appeal is accepted and judgment and decree of the first appellate Court are set aside and those of the trial Court are restored. Appeal stands disposed of accordingly. April 26, 2010 (ss) (Surjit Singh), J