IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. Nos. 316 and 331 of 2006 Reserved on: 13.11.2018 Decided on : 19 .11. 2018. RSA No. 316 of 2006 Dina Nath …Appellant/Defendant Versus Jasodhara (now deceased) through LRs Nasib Chand and others ...Respondents/Plaintiffs. For the Appellant : Mr. Y. Paul, Advocate. For the Respondents : Mr. Surender Verma, Advocate, for respondents No.1 to 3. Mr. Dinesh Kumar Sharma, Advocate, for respondents No.4(a) and 4(b). RSA No. 331 of 2006 Meena ….Appellant/Defendant Versus Jasodhara (now deceased) through LRs Nasib Chand and others ...Respondents/Plaintiffs. For the Appellant : Mr. Dinesh Kumar Sharma, Advocate. For the Respondents : Mr. Surender Verma, Advocate. Coram The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting ?1 No _______________________________________________________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 Tarlok Singh Chauhan, Judge Since both these appeals have arisen from the common judgment dated 17.4.2006 passed by learned District Judge. Mandi, therefore, the same were taken up together for hearing and are being disposed of by a common judgment. 2. The defendants are the appellant, who after suffering a decree of permanent prohibitory injunction by the trial Court, as affirmed by first appellate Court, have filed the instant appeals. 3. The factual matrix giving rise to filing of the instant appeals are that the plaintiffs filed a suit under Section 45 of the H.P. Land Revenue Act for declaration with consequential relief of injunction. It was averred that plaintiffs No.1 and 2 were daughters of Ajudhya and defendant No.2 and plaintiff No.3 are grand daughters of Banti, who had bequeathed her entire properties in favour of defendant No.2 and plaintiff No.3. It was averred that Ajudhya and Banti were non-occupancy tenants over the land comprised in Khewat Khatauni No. 138/307, Khasra No. 557 measuring 107.65 sq.meters (in short suit land) situated in Muhal Sundernagar, District Mandi, H.P. 4. Smt. Ajudhya died in December 1996 whereas Banti expired prior to that in June, 1980. Both of them during their life time had become owners of the suit land by operation of law. Defendant No.1 married with defendant No.2 in 1978 and was living in the house of her 3 in laws as “Ghar Jawain”. Defendant No.1 otherwise was a resident of Luhara, Tehsil Sadar, District Mandi which was about 20 KM away from the suit land. Defendant No.2 and plaintiff No.3 are real sisters and they were joint till 27.10.1987. 5. Defendants No.1 and 2 in collusion with the revenue staff got entered defendant No.1 as non-occupancy tenant vide file No.77/SO dated 5.1.1978 whereas there was no such file and entry in the khasra girdawari had been made in collusion with the revenue staff. The concerned Patwari had unauthorisedly removed the name of Ajudhya and Banti from the revenue record and in their place mentioned defendant No.1 as tenant. The entry was made without any mutation behind the back of the plaintiff. Thus, mutation No.563 made in favour of the defendant is illegal, null and void and against the principle of natural justice. The plaintiffs came to know about the above entry on 5.8.1985 and thereafter on 29.3.1986 when the defendant interfered with the possession of the plaintiffs. 6. The suit was contested by the defendants, who filed written statement and took preliminary objections that defendant No.1 was tenant over the suit land and had become owner under the provisions of H.P. Tenancy and Land Reforms Act (in short ‘Act’). It was claimed that since the plaintiffs had not filed any appeal against the said order before the Collector, as such the order of Land Reforms Officer had become 4 final and the Civil Court had no jurisdiction to try the suit. It was further claimed that the suit was time barred and not legally maintainable. On merits, it was admitted that plaintiff No.3 and defendant No.2 were grand daughters of Banti and she had executed a Will in their favour. However, it was claimed that defendant No.1 was alleged to be non-occupancy tenant over the suit land and had therefore become owner by operation of law. It was claimed that the plaintiffs were neither owners nor in possession of the suit land, as such, the question of their dispossession does not arise at all. Lastly, it was claimed that defendant No.1 had constructed a cow-shed over the suit land and planted fruit bearing trees which were well within the knowledge of the plaintiffs. It was further averred that since the plaintiffs were not owners in possession of the suit land, hence the suit was sought to be dismissed. 7. The plaintiffs filed replication to the written statement filed by the defendants and reiterated the stand taken in the plaint and denied the averments made in the written statement. 8. Initially the suit was decided by the Sub Judge 1st Class, Sundernagar vide judgment dated 9.4.1991 whereby the suit of the plaintiff was decreed for permanent prohibitory injunction against defendant No.1. An appeal was preferred by the defendants against the judgment and decree dated 9.4.1991 which was decided on 22.2.1995 and the trial Court judgment was set-aside and the case was remanded 5 back to the learned trial Court for fresh decision after reframing the following issues: 1. Whether Smt. Banti and Ajudhya were the tenants of the land in suit as alleged? OPP 2. Whether the plaintiffs are entitled to relief of permanent injunction as prayed for? OPP 3. Whether the defendant No.1 being the tenant has become owner of the land in suit by the provisions of H.P. Tenancy and Land Reforms Act as alleged? OPD 4. Whether the Court has no jurisdiction to try the suit? OPD 5. Whether the suit is barred by time? OPD 6. Whether the plaintiffs have got no locus standi to file the suit? OPD 7. Whether the suit is not legally maintainable in the present form? OPD 8. Whether the suit is bad for non-joinder of the parties? OPD 9. Relief. 9. After recording the evidence and evaluating the same, the learned trial Court decreed the suit by concluding that defendant No.1 was not in possession of the suit land in any capacity whatsoever and his possession was on behalf of defendant No.2 i.e. his wife and accordingly a decree to the effect that the plaintiffs and defendant No.2 are in joint possession of the suit land came to be passed and defendants No. 1 and 2 were permanently restrained from dispossessing the plaintiffs from the suit land till the land was partitioned amongst them in accordance with law. 6 10. The aforesaid impugned judgment and decree passed by the learned trial Court was assailed by the defendants before the first appellate Court by filing two separate appeals. However, both the appeals came to be dismissed by learned first appellate Court vide judgment and decree dated 17.4.2006. Defendants No. 1 and 2 have filed the instant separate appeals, which came to be admitted on the following substantial question of law: “1. Whether the judgment of both the Courts below is contrary to the revenue record Ex.DC which supports the case of the appellant?” I have heard learned counsel for the parties and gone through the records of the case carefully. 11. The case set up by defendant No.1 as is evident from the pleadings is that he was a tenant over the suit land and is now in settled possession over the same after having become its owner under the provisions of the H.P. Tenancy and Land Reforms Act. At this stage, it would be apt to reproduce para-1 of the preliminary objections, which reads thus: “1. That the defendant No.1 was the tenant of the suit land and has become owner by the provisions of H.P. Tenancy and Land Reforms Act and as such now defendant No.1 is owner in possession of the suit land. The plaintiffs did not 7 file any appeal to the Collector against the order of the Land Reforms Officer concerning conferment of property rights in favour of defendant No.1 and therefore the order of the Land Reforms Officer has become final and this Court has got no jurisdiction to set aside the order of the Land Reforms Officer and have got no jurisdiction to try the present case.” Who inducted defendant No.1 and at what time he was inducted as a tenant is conspicuously missing in the pleadings. 12. Mr. Dinesh Kumar Sharma alongwith Mr. Y.Paul, Advocates would vehemently argue that defendant No.1 was entered as tenant in view of the correction application filed by him which was decided vide file No.77 dated 5.1.78 as is evident from Khasra Girdawari Ex.PA and it is thereafter mutation No. 563 was sanctioned conferring proprietary rights upon him under Section 104 of the Act vide mutation Ex.DF. 13. However, now in case the mutation Ex.DF is perused, it would be noticed that the presence of the plaintiff has not been recorded therein and the same was recorded only in the presence of defendant No.1 and therefore no credence can be lent or given to such mutation. 14. Apart from the above, there is admittedly no order of the Land Reforms Officer or any other competent authority so as to show in what manner the entry of tenancy was initially made in favour of defendant No.1. In fact the factum of tenancy in favour of defendant No.1 8 was not even recorded in Rapat Rojnamcha nor the order of the Revenue Officer was implemented regarding creation of tenancy by way of sanctioning of mutation. The learned first appellate Court has categorically observed as under: “….This Court during the course of arguments wanted to know from the learned counsel for the defendant that as to why the defendant No.1 has not produced the order of the Revenue Officer showing the manner in which the entry of tenancy was made in favour of defendant No.1. If the said order was not available why secondary evidence was not led in order to prove the passing of such order by the Revenue Officer. However, no satisfactory reply could be given by the learned counsel for the defendants….” 15. Now, adverting to the other documents that have come on record, it would be clear from the perusal of jamabandi for the year 1978- 79 Ex.P-2 that Banti and Ajudhya were recorded as Gair Maurusi under various landlords in respect of Khasra No. 557, measuring 107.65 sq.meters (i.e. suit land) on payment of rent. There is also reference to mutation No. 563 whereby proprietary rights were conferred upon defendant No.1 in respect of 4/5th share. There is also reference to mutation No. 542 whereby the estate of landlord Sudan was inherited by defendant No.3. Thus, what stands proved on record is that in the year 1978-79, Banti and Ajudhya were admittedly recorded as tenants and this 9 entry also finds mention in Misal Haqiat Bandobast Ex.P-3. The name of defendant No.1 came to be recorded only in Khasra Girdawari Ex.PA on the basis of the order passed on 5.1.78 in Misal No. 77/SO. 16. It is more than settled that tenancy agreement is a bilateral agreement between the parties which may be either expressed or implied and in absence of payment of rent, there can be no valid tenancy. Defendant No.1 has failed to prove any such agreement on record. Therefore, in absence of any agreement, obviously then defendant No.1 was required to produce some order whereby tenancy in his favour had been created and only thereafter could proprietary rights have been conferred upon him. Thus, in absence of any agreement or order, it cannot be said that defendant No.1 has been able to prove or establish his tenancy over the suit land so as to entitle him to be conferred upon him the proprietary rights over the same. 17. That apart, it is more than settled that entry in record of rights can be changed either on admitted facts or under a lawful and valid order of Revenue Officer or a Civil Court. None of these conditions exists in the instant case. 18. As observed earlier, defendant No.1 in his pleadings has failed to spell out as to who had inducted him as non-occupancy tenant over the suit land. However, while appearing as DW-1 he stated that he was inducted as a tenant in the year 1971 by both Ajudhya and Banti. 10 But, then this is not the pleaded case of defendant No.1 and therefore, no amount of evidence contrary to the pleadings can be looked into. 19. Learned Division Bench of this Court, of which I was one of the members, had elaborately considered in detail the relevance of pleadings in State of Himachal Pradesh and others versus Baldev and others 2016 (1) SLC 361 and it was observed as under:- “38. While deciding a civil suit, the pleadings are the foundation of the case. The pleadings play an important role in making the judgment and decree and that is why it is said that the pleadings are the heart, soul and essential foundation of a judicial verdict. It is the bedrock of the judicial disposal. 39. In the instant case, at the cost of repetition, the plaintiffs- respondents have not prayed for relief of compensation or recovery of possession, no such foundation was laid. 40. The Apex Court in the case titled as State of Orissa & Anr. versus Mamata Mohanty, reported in 2011 AIR SCW 1332, held that the relief, not founded on pleadings, cannot be granted. It is apt to reproduce para 35 of the judgment herein: "35. Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is a settled legal proposition that "as a rule relief not founded on the pleadings should not be granted." Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ. (Vide : Sri Mahant Govind Rao v. Sita Ram Kesho, (1898) 25 Ind. App. 195; M/s. Trojan & Co. v. RM. N.N. Nagappa Chettiar, AIR 1953 SC 235; Ishwar Dutt v. Land Acquisition Collector & Anr., AIR 2005 SC 3165 : (2005 AIR SCW 578); and State of 11 Maharashtra v. Hindustan Construction Company Ltd., (2010) 4 SCC 518 : (2010 AIR SCW 2265)) " 41. The parties, the Courts of first instance, the Appellate Courts or the Revisional Courts cannot travel beyond the pleadings in view of the mechanism provided in CPC, which provides as to what procedure is to be followed after trial stage, i.e. after framing the issues, in terms of Order XIV CPC and how it has to be taken to its logical end after framing the issues. 42. The Apex Court in the case titled as Hari Chand versus Daulat Ram, reported in AIR 1987 Supreme Court 94, held that when the plaintiff fails to prove his case as pleaded in the plaint, the relief cannot be granted by the Court, which is neither pleaded nor prayed. It is apt to reproduce para 11 of the judgment herein: "11. On a consideration of all the evidences on record it is clearly established that the alleged encroachment by construction of kuchha wall and khaprail over it are not recent constructions as alleged to have been made in May 1961. On the other hand, it is crystal clear from the evidences of Ramji Lal P.W. 1 and Daulat Ram D.W. 1 that the disputed wall with khaprail existed there in the disputed site for a long time, that is 28 years before and the wall and the khaprail have been affected by salt as deposed to by these two witnesses. Moreover the court Amin's report 57C also shows the said walls and khaprail to be 25-30 years old in its present condition. The High Court has clearly come to the finding that though the partition deed was executed by the parties yet there was no partition by metes and bounds. Moreover there is no whisper in the plaint about the partition of the property in question between the co-sharers by metes and bounds nor there is any averment that the suit property fell to the share of plaintiffs vendor Ramji Lal and Ramji Lal was ever in possession of the disputed property since the date of partition till the date of sale to the plaintiff. The plaintiff has singularly failed to prove his case as pleaded in the plaint." 43. The Apex Court in the case titled as Bachhaj Nahar versus Nilima Mandal & Ors., reported in 2009 AIR SCW 287, held that the Court cannot, on finding that the plaintiff has not made out the case 12 put-forth by him, grant some other relief. It is apt to reproduce para 12 of the judgment herein: "12. It is thus clear that a case not specifically pleaded can be considered by the court only where the pleadings in substance, though not in specific terms, contains the necessary averments to make out a particular case and the issues framed also generally cover the question involved and the parties proceed on the basis that such case was at issue and had led evidence thereon. As the very requirements indicate, this should be only in exceptional cases where the court is fully satisfied that the pleadings and issues generally cover the case subsequently put forward and that the parties being conscious of the issue, had led evidence on such issue. But where the court is not satisfied that such case was at issue, the question of resorting to the exception to the general rule does not arise. The principles laid down in Bhagwati Prasad and Ram Sarup Gupta (supra) referred to above and several other decisions of this Court following the same cannot be construed as diluting the well settled principle that without pleadings and issues, evidence cannot be considered to make out a new case which is not pleaded. Another aspect to be noticed, is that the court can consider such a case not specifically pleaded, only when one of the parties raises the same at the stage of arguments by contending that the pleadings and issues are sufficient to make out a particular case and that the parties proceeded on that basis and had led evidence on that case. Where neither party puts forth such a contention, the court cannot obviously make out such a case not pleaded, suo motu." 44. The pleadings and particulars are necessary to enable the Court to decide the rights of the parties in the trial. 45. The Apex Court in the case titled as National Textile Corporation Ltd. versus Nareshkumar Badrikumar Jagad & Ors., reported in 2011 AIR SCW 6180, has laid down the same principle. It is apt to reproduce para 7 of the judgment herein: "7. Pleadings and particulars are necessary to enable the court to decide the rights of the parties in the trial. Therefore, the pleadings 13 are more of help to the court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is a settled legal proposition that "as a rule relief not founded on the pleadings should not be granted". A decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ. (Vide: M/s. Trojan & Co. v. RM N.N. Nagappa Chettiar, AIR 1953 AIR 235; State of Maharashtra v. M/s. Hindustan Construction Company Ltd., AIR 2010 SC 1299; and Kalyan Singh Chouhan v. C.P. Joshi, AIR 2011 SC 1127)." 20. Once, it is established on record that there is no bilateral agreement or an order of the competent authority to prove as to when and by whom defendant No.1 was inducted as a tenant, then the entry in jamabandi Ex.DC is of no avail, because the same is totally unauthorised as the conferment of proprietary right upon defendant No.1 on the basis of wrong entries and even by a person i.e. Assistant Collector 2nd Grade, who was not the LRO, is contrary to law and in violation of the statutory principles of the H.P. Tenancy and Land Reforms Act and being beyond jurisdiction of these authorities has no evidentiary value in the eyes of law and cannot even be looked into. Thus, defendant No.1 was not and cannot be said to be a non-occupancy tenant over the suit land. 21. At this stage, learned counsel for the appellant would vehemently argue that it has been proved on record that defendant No.1 had raised construction of temporary cow-shed over the suit land and was thus entitled to injunction. Even if it is assumed that there is a 14 temporary cowshed over the suit land, even then defendant No.1 would still not be entitled to injunction because admittedly the plaintiff alongwith defendant No.2 is co-sharer of the suit land, whereas defendant No.1 is none other than the husband of defendant No.2. If at all anything is done by defendant No.1 that would be deemed to be on behalf of his wife, who is a co-sharer and it is more than settled that possession of one co- sharer is possession of all. Substantial question of law is accordingly answered against the appellants. 22. In view of the aforesaid discussion, I find no merit in these appeals and the same are accordingly dismissed, so also the pending application(s) if any, leaving the parties to bear their own costs. November 19th, 2018. ( Tarlok Singh Chauhan ) (GR) Judge