IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A No. 89 of 1999 Reserved on 22.3.2010 Date of decision 30.4.2010 Brij Lal & others. ....Appellants. Versus Lachmi Nand & others ....Respondents. Coram Hon'ble Mr. Justice Kuldip Singh,Judge Whether approved for reporting?No For the appellants: Mr. Rajnish K. Lal, vice Mr. K.D Sood, Advocate. For the respondents: Mr.T.S Chauhan, Advocate. -------------------------------------------------------------------------------- Kuldip Singh, J The appellants are the plaintiffs, who have come in appeal against the judgment and decree dated 1.2.1999 passed by the learned District Judge, Bilaspur in Civil Appeal No. 61 of 1989 affirming judgment and decree dated 26.6.1989 passed by the learned Senior Sub Judge, Bilaspur in Civil Suit No. 38/1 of 1989. The parties for convenience sake in the judgment have been referred to as 'plaintiffs' and 'defendants'. 2. The brief facts of the case are that plaintiffs had filed a suit for declaration, permanent prohibitory injunction and in the alternative, for possession. The suit land measuring 64 bighas 9 biswas is jointly owned by parties except defendant No. 8 Smt. Lila. Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 3. The further case of the plaintiffs is that one Narainu had three sons, namely, Sudama, Parsa and Khazana. All the three brothers were recorded in possession as occupancy tenants on the suit land to the extent of 1/3rd share, each. Parsa died issueless somewhere in the year 1958. The share of Parsa was succeeded by his two brothers Khazna and Sudama in equal shares. It appears Sudama and Khazana were conferred proprietary rights of the entire suit land measuring 64 bighas 9 biswas to the extent of ½ share each and a mutation No. 264 dated 15.4.1961 Ext. P.4 was attested. Khazana sold his share to Dhani Ram, Tulsi Ram, Jagar Nath and Laxmi Nand vide mutation No. 265 dated 7.6.1961, Ext. P.3. 4. The half of the land which was recorded in ownership of Kahanu and Malagar, vested in the State, as a result of which mutation vide which Khazana and Sudama were conferred proprietary rights, was reviewed by another mutation Ext. P.6 and contesting defendants came to be recorded as owners to the extent of 1/4th share and in the other 1/4th share, Khazana and Sudama continued to be recorded as occupancy tenants. The other half of the suit land was mutated in the name of the State. 5. Khazana and Sudama died and they were succeeded by plaintiffs and defendant No. 8. In the column of possession, the contesting defendants No. 1 to 7 continued to be recorded as owners on the basis of sale. The plaintiffs who are the successors- in-interest of Khazana and Sudama, have brought the suit for declaration that they are owners in joint possession of 3/4th share. 3 The mutation No. 264 granting proprietary rights was wrongly attested and it was done in connivance with the revenue staff. It is the case of the plaintiffs that in view of Section 27 of Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953, one half of the suit land vested in the State, sale by Khazana in favour of contesting defendants became void, more particularly when mutation No. 264 was reviewed. 6. It is also the case of the plaintiffs that after the death of Khazana, his widow Ghogan plaintiff No. 4 re-married Sudama and from their wedlock, Brij Lal, plaintiff No. 1 was born, Sudama became owner of 1/6th share and continued to be occupancy tenant to the extent of 1/3rd share. On the death of Sudama, the ownership rights to the extent of 1/6th share devolved upon plaintiffs No. 1 and 4, his occupancy rights of 1/3rd share were inherited by plaintiff No. 1 alone. On the death of Khazana and Sudama, plaintiffs No. 1 to 3, who are occupancy tenants, became owners of 3/4th share and defendants No. 1 to 7 had 1/4th share and, therefore, the plaintiffs have prayed for the relief of declaration that they are joint owners to the extent of 3/4th share in the suit land, permanent injunction restraining defendants No. 1 to 7 from interfering in the enjoyment of the plaintiffs, in the alternative, for possession. 7. The suit was contested. Preliminary objections of lack of cause of action, jurisdiction, valuation, maintainability have been taken. It has been pleaded that sale made in their favour by 4 Khazana is valid and binding on the plaintiffs, who are estopped from challenging the same after a long time. The defendants have alleged that vestment in the State is illegal, they are recorded as non-occupancy tenants under Sudama and Khazana and on coming into force of the H.P Tenancy and Land Reforms Act, 1972, they have become owners of the share of Sudama. In the alternative, they have claimed that they have become owners by way of adverse possession. The plaintiffs filed a replication and controverted the stand taken by the defendants. 8. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiffs are owners in possession of ¾ shares of suit land? ...OPP 2. Whether the plaintiff is the son of Sudama as alleged? . ..OPP 3. Whether Shri Sudama, Parsa Ram and Khazana acquired 1/3rd shares in suit land, as alleged? ...OPP 4. Whether the contesting defendants were non- occupancy tenants, as alleged? If so, its effect? ...OPD 5. Whether the plaintiff has no cause of action? ...OPD 6. Whether this Court has no jurisdiction to try and decide the present suit? ...OPD 7. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? ...OPD 7-A Whether Shri Khazana and Sudama acquired proprietary rights of the land measuring 64 5 bighas 9 biswas, as alleged? ...OPD 7-B Whether Shri Khazana sold ½ share of the land measuring 64 bighas 9 biswas, as alleged? ...OPD 7-C Whether defendants No. 1 to 6 and 10 are owners-in-possession of 1/4th share of Shri Khazana by way of adverse possession? ....OPD 7-D Whether defendants cannot challenge the orders of L.R.O as alleged? ....OPD 7-E Whether the 64 bighas 9 biswas of land vested in the State of H.P., as alleged, if so, its effect? ...OPD 7-F Whether defendants No. 1 to 6 and 10 are estopped from challenging the mutation No. 548 and claiming ownership of 74/23 shares in the land in dispute, as alleged? ....OPD 7-G Whether Ghogan re-married Sudama after the death of Khazana, as alleged? ....OPD 7-H Whether the plaintiffs are bound by the sale made by Shri Khazana Ram and are estopped from challenging the same? ....OPD 8. Relief. 9. Issues No. 1, 6, 7 and 7-C were answered in negative, Issues No. 2, 5, 7-B, 7-G and 7-H were answered in affirmative and Issues No. 3, 4, 7-A, 7-D, 7-E, 7-F were decided accordingly, the suit was dismissed by the learned Senior Sub Judge on 26.6.1989. In appeal, the learned District Judge on 1.2.1999 confirmed the judgment and decree dated 26.6.1989. In this way, the plaintiffs have filed the Second Appeal, which has been admitted on the following substantial questions of law:- 6 1. Whether the courts below have misconstrued the provisions of Abolition of Big Landed Estates and Land Reforms Act and H.P Tenancy and Land Reforms Act and have wrongly found the defendants to be the owners in possession of the ½ share instead of 1/8th share? 2. Whether the defendants could be owner and tenant at the same on the same parcel of land and claim proprietary rights qua the said tenancy rights? 3. Whether the defendants could become tenants and later on owners qua the share of the minors under the provisions of H.P. Tenancy & Land Reforms Act? 4. Whether the court below has misread and misconstrued oral and documentary evidence on record, especially the statements of PW R-1 Brij Lal, PW 1. Kishan Chand, Ex. P-13, Jamabandi 1951-52, Ex.P14, Jamabandi for 1953-54, Ex. D-1, Misal Haquiat 1969, Ex. P-11, P-12, P-22 to 31, orders of compensation officer? 5. Whether in the absence of an agreement of creation of tenancy and statute creating tenancy in favour of defendants and non- production of any receipt of rent, stray entry will raise the presumption of tenancy in the facts and circumstances of the case? 10. I have heard the learned Counsel for the parties and have also gone through the record. On behalf of the appellants, it has been submitted that the Courts below have misconstrued the provisions of Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 and H.P Tenancy and Land Reforms Act, 1972. The Courts below have wrongly held that the defendants are owners-in-possession of ½ share instead 1/8th share only. It has not been appreciated that defendants could not be the owners and 7 tenants on the same parcel of land and, therefore, they could not claim proprietary rights qua the tenancy rights. The Courts below have not considered whether defendants could acquire the proprietary rights qua the share of minors under the H.P Tenancy and Land Reforms Act, 1972. The oral and documentary evidence has been misread and misconstrued. The contract of tenancy has not been pleaded nor it has been proved. The learned Counsel for the respondents has supported the impugned judgment and decree and has submitted that the Courts below have recorded findings of facts, no substantial questions of law are involved in the appeal and he has prayed for dismissal of the appeal. 11. The substantial questions of law Nos. 2, 3 & 5 are taken up first for consideration. In the plaint there is no foundation in support of substantial question of law No. 2, however, in law, there is no bar that a co-sharer cannot be a tenant of other co-sharers in the joint khata. In Smt. Savitri Devi v. Santa and etc. AIR 1983 H.P. 1 (FB) where the question of granting of proprietary rights under the H.P. Abolition of Big Landed Estates and Land Reforms Act,1954 when one of the co-owners who was physically incapable was under consideration. The Full Bench has held in the part of tenancy held by a tenant, he can acquire proprietary and other rights under sub- sec.(1) of Section 11 of the Act of such co-owners who are not entitled to the protection under sub section (2) of Section 11 of the Act. Similarly, he continues to be a tenant of the remaining land in which he could not acquire ownership rights of such co-owners who 8 were entitled to the protection under sub-sec.(2) of Section 11 of the Act. Thus, it is clear that there is no bar that a co-sharer cannot be a tenant of other co-sharers and himself a co-sharer in joint Khata. Hence, substantial question of law No. 2 is decided against the appellants. 12. In para No. 11 of the plaint, the plaintiffs have pleaded that plaintiffs No. 2 & 3 and defendant No. 8 were minors, whereas plaintiff No. 1 was in the womb, when Khazana and Sudama had died and, therefore, they are not bound by the entries in the revenue record. It is not the case of the plaintiffs that at the time of conferment of proprietary rights under Himachal Pradesh Tenancy and Land Reforms Act, the said plaintiffs and defendant No. 8 continued to be minors. PW R-1 Brij Lal in his statement has not stated that on the date of conferment of proprietary rights under the H.P Tenancy and Land Reforms Act, any plaintiff or defendant No. 8 were minor. The plaintiffs in the pleadings have not projected the case that since some plaintiffs or defendant No. 8 were minor, therefore, proprietary rights could not be conferred on the defendants under the H.P. Tenancy and Land Reforms Act. Therefore, now this point cannot be allowed to be taken in the Second Appeal. Hence, substantial question of law No. 3 is decided against the appellants. 13. The substantial question of law No. 5 has no foundation in the plaint. It is not the case of the plaintiffs that defendants or their predecessors were not inducted tenants on any 9 part of the suit land. On the contrary, in paragraph 10 of the plaint, the plaintiffs have pleaded that after the death of Sudama and Khazana, plaintiffs No. 1 to 3, occupancy tenants became owners as such and, therefore, the plaintiffs have 5/6th share and defendants No. 1 to 7 have 1/6th share. In the plaint, it is not the case of the plaintiffs that defendants were never inducted as tenants on any part of the suit land. The substantial question of law No. 5 is decided against the appellants. 14. The substantial question of law 1 and 4 are inter- connected, therefore, both of them are taken up together for decision. P.W. 1 Krishan Chand, Patwari is a witness with respect to notice Ext. P.W. 1/A and he has stated nothing regarding the merits of the case. PW R-1 Brij Lal is the plaintiff. The perusal of statement of this witness indicates that he is not aware of the case. He has given his date of birth 24.4.1966. He has stated that he does not know regarding the sale of the land. He has stated that his father had never inducted Lachmi Nand etc. as tenants. He has stated that his father Sudama had died on 21.11.1965. This witness was born after the death of his father and, therefore, his statement that his father had never inducted Lachmi Nand etc. as tenant, cannot be easily accepted unless it is corroborated. The plaintiffs have not examined any other witness to corroborate the statement of Brij Lal. 15. In the plaint, the plaintiffs are claiming 5/6th share but PW R-1 Brij Lal has stated that they have share to the extent 10 of 3/4th. He cuts at the root of his own case when he has stated that Kahanu and Malangar had wrongly inducted Sudama, Khazana and Paras Ram. He has shown his ignorance that at the time of Khazana and Sudamas, Lachmi Nand etc. were cultivating the suit land as non-occupancy tenants. He has also shown his ignorance that Laxmi Nand etc. are in possession of 45 bighas of land out of the suit land. 16. The learned Counsel appearing on behalf of the appellants has failed to establish how the Courts below have mis- construed, mis-interpreted various provisions of Himachal Pradesh Abolition of Big Landed Estate and Land Reforms Act as well as Himachal Pradesh Tenancy and Land Reforms Act. No specific provisions of aforesaid Acts allegedly misconstrued, misinterpreted by courts below have been pointed out. The misconstruction of oral and documentary evidence referred in substantial question of law No. 4 is neither pointed out nor established from the material on record. The two Courts below have recorded findings of facts in favour of the defendants that they have been rightly recorded in possession to the extent of half share. It has not been established that inadmissible evidence has been considered or material evidence having bearing on the merits of the case has been ignored. In the Second Appeal, the evidence cannot be re-appreciated. The substantial questions of law No. 1 and 4 are accordingly decided against the appellants. 17. No other point was urged. 11 18. The result of the above discussion, there is no merit in the appeal, which is liable to be dismissed and is accordingly dismissed, no costs. (Kuldip Singh), Judge. April 30, 2010. (H.L/sks)