IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMP No. 440 of 2010 and R.S.A. No. 456 of 2000 Judgment reserved on :22.12.2010 Date of decision: 21. 02. 2011. State of Himachal Pradesh and Ors. …Appellants. Versus Ajay Vij and others ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the appellants : Ms. Ruma Kaushik, Additional Advocate General. For the respondents : Mr. Sanjeev Kuthiala, Advocate. Kuldip Singh , Judge This judgment shall dispose of CMP No. 440 of 2010 for additional evidence and RSA No. 456 of 2000 filed against judgment, decree dated 12.6.2000 passed by learned District Judge, Shimla in Civil Appeal No. 117-S/13 of 1998 partly allowing the appeal by reversing judgment, decree dated 10.6.1998 passed by learned Sub Judge 1st Class, Court No.1, Shimla in Case No. 29/1 of 1996/93. 2. The facts, in brief, are that Amar Nath Vij predecessor-in- interest of respondents had filed a suit for declaration and injunction on the grounds that he was inducted as a tenant by appellant No.2 through the then Tehsildar, Kasumpti over the land comprised in Khasra 1 Whether reporters of Local Papers may be allowed to see the Judgment ? 2 No. 363 measuring 7 bighas and khasra No. 548 measuring 1 bigha 16 biswas situated at Mauza Sanjauli, Shimla (for short ‘suit land’) on annual rent of ` 25/- about 40 years ago and since then he had been coming in possession of the suit land. 3. It was also the case of Amar Nath Vij, plaintiff that he had planted fruit trees on land comprised in Khasra No. 363 and there was one storey house over land comprised in khasra No. 548. He had been recorded as non-occupancy tenant under the State of Himachal Pradesh on payment of Chakota ` 25/- per annum. He had become owner of the suit land under Section 104 of the H.P.Tenancy and Land Reforms Act, 1972 (for short ‘Act’) by operation of law on coming into force of the Act. 4. It transpired during settlement operation that entry regarding conferment of proprietary rights as required under Rule 27 of the H.P. Tenancy and Land Reform Rules, 1975 has not been made in the revenue record and the plaintiff had been recorded as non-occupancy tenant. 5. The further case of the plaintiff was that he had requested the settlement authority to enter his name in the record but his plea was rejected on 30.9.1992 by A.C.(Settlement) which is illegal, void, in- operative. The possession of the plaintiff over the suit land was open, continuous, peaceful and hostile since 1952 and he was absolute owner in possession of the suit land. 6. The revenue entries have been mis-understood by revenue authority when it was held that plaintiff was trespasser on the suit land. The threaten action of A.C. 2nd Grade to dispossess him from the suit 3 land was illegal and the State of H.P. has no right to get the possession of the suit land. In these circumstances, the suit was filed. 7. The suit was contested by appellants by filing written statement, preliminary objections of jurisdiction, locus-standi, cause of action, limitation and maintainability were taken. On merits, tenancy of plaintiff on the suit land was denied with the plea that plaintiff was never inducted tenant on the suit land. The grass growing over the suit land was auctioned to the plaintiff during the year 1966-67 for ` 25/-. The plaintiff was wrongly entered as non-occupancy tenant for cutting or using the grass on the Government land. The possession of the plaintiff on the suit land was denied. One Darshan Dass has encroached a portion of khasra No. 548 by constructing a kitchen which is liable to be ejected under Section 163 of the H.P.Land Revenue Act. No tenant on Government land is entitled for ownership under Section 104 of the Act. The appellants prayed for dismissal of the suit. The plaintiff filed replication and reiterated his stand. 8. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is owner in possession of suit land ? OPP 2. Whether the plaintiff is entitled to relief of permanent injunction?OPP 3. Whether this Court has no jurisdiction to try the suit? OPD 4. Whether the suit is not within time? OPD 5. Relief. The issues No.1 to 4 were answered in negative and the suit was dismissed on 10.6.1998 by learned Sub Judge 1st Class, Shimla. The learned District Judge on 12.6.2000 partly accepted the appeal and suit of the plaintiff was decreed to the extent that he was declared to be 4 tenant in respect of the suit land and the appellants were restrained from evicting him therefrom, except by due process of law. The decree dated 12.6.2000 has been assailed in the present appeal which has been admitted on the following substantial questions of law:- 1. Whether the Civil Court has jurisdiction to entertain and try the Civil Suit, particularly when according to the allegations of the plaintiff the relationship of Landlord and tenant subsists between the parties? 2. Whether in the absence of specific evidence of induction of the plaintiff as tenant over the suit land, the judgment and decree are perverse? 9. I have heard the learned Additional Advocate General for the appellants and Mr. Sanjeev Kuthiala, Advocate, learned counsel for the respondents and have also gone through the record. The learned Additional Advocate General has submitted that the Civil Court has no jurisdiction to try the suit. There is no evidence of creation of tenancy in favour of plaintiff. In other words, the relationship of landlord and tenant between the parties has not been proved, the learned District Judge has erred in accepting the plea of the plaintiff that he was inducted as tenant on the suit land. 10. The learned counsel for the respondents has supported the impugned judgment, decree. He has submitted that after the death of Amar Nath Vij plaintiff, the mutation of inheritance has been attested in favour of Ajay Kumar by way of mutations No. 545 and 425 and as a result thereof he has been shown as tenant in possession on payment of ` 25/- by way of annual rent. The old khasra No. 363 during settlement has been given new khasra Nos. 1864, 1865, 1866, 1873 and 1884 and old khasra No. 548 has been given new khasra Nos. 651, 652 to 655. In 5 order to prove these facts on record, the respondents have filed CMP No. 440 of 2010 for leading additional evidence. The learned counsel for the respondents has prayed for allowing CMP No. 440 of 2010. The learned counsel for the respondents has submitted that respondents have become owners of the suit land automatically under the Act. The learned Additional Advocate General has opposed CMP No. 440 of 2010. 11. The respondents have filed application being CMP No. 440 of 2010 for additional evidence. It has been submitted that after the death of Amar Nath Vij plaintiff, mutations No. 545 and 425 have been attested in favour of Ajay Kumar. In the meantime, in the settlement old khasra Numbers have been given new khasra numbers as indicated in the application. Ajay Kumar now has been shown as tenant on the suit land and in order to prove these facts the application has been filed for additional evidence. 12. The additional evidence which the respondents now intend to lead is the result of development which took place during the pendency of litigation. The dispute between the parties is with respect to tenancy over the suit land. The documents which the respondents now intend to bring on record by way of additional evidence will not assist this Court in determining the dispute regarding the creation of tenancy in favour of Amar Nath Vij as claimed by him in the plaint. The additional documents, therefore, are not necessary to adjudicate the real controversy between the parties. The respondents through their predecessor will have to establish their case of tenancy on the suit land as claimed by them. Hence, CMP No. 440 of 2010 for additional evidence is dismissed. 6 13. The learned Sub Judge under issue No.3 of jurisdiction has held that the Court has jurisdiction to try the suit. It has been submitted that in view of Chuhniya Devi vs. Jindu Ram 1991 (1) Sim.L.C.223 the Civil Court has no jurisdiction to try the suit. In the plaint the plaintiff had not challenged the order conferring proprietary rights under Section 104 of the Act. In fact, no such proprietary rights were conferred on the plaintiff. The plaintiff had filed the suit claiming tenancy over the suit land and injunction. In Chuhniya Devi (supra), the following questions were before the Full Bench whether the civil court has jurisdiction in respect of an order: (a) “made by the competent authority under the H.P.Land Revenue Act, 1954, and (b) of conferment of proprietary rights under Section 104 of the H.P.Tenancy and Land Reforms Act, 1972, which has not been assailed under the provisions of these Acts.” The Full Bench answered the questions in para 64 of the report as follows:- (a) “that an order made by the competent authority under the H.P.Land Revenue Act, 1954, is open to challenge before a civil court to the extent that it relates to matters falling within the ambit of Section 37 (3) and section 46 of that Act; and (b) that civil court has no jurisdiction to go into any question connected with the conferment of proprietary rights under section 104 of the H.P.Tenancy and Land Reforms Act, 1972, except in a case where it is found that the statutory authorities envisaged by that Act had not acted in conformity with the fundamental principles of judicial procedure or where the provisions of the Act had not been complied with.” 14. The learned Additional Advocate General has failed to make out a case how the civil court has no jurisdiction to try the suit. The 7 perusal of plaint indicates that civil court has jurisdiction to try the suit. Thus, the substantial question of law No.1 is decided against the appellants. 15. The pleaded case of the plaintiff in the plaint is that he was inducted as tenant by appellant No.2 through Tehsildar Kasumpti over the suit land on annual rent of ` 25/- about 40 years ago. The suit was filed on 15.1.1993. It means according to plaintiff he was inducted tenant on the suit land somewhere in the year 1953. The term ‘tenant’ has been defined in sub-section 17 of Section 2 of the Act as follows:- “tenant means a person who holds land under a landowner, and is, or but for a contract to the contrary would be liable to pay rent for that land to that landowner, and includes- (i) a sub-tenant [ ****] ; and (ii) the predecessors or successors in interest of a tenant or a sub-tenant, as the case may be; but it does not include— (a) a [mere] mortgagee of the rights of landowner, or (b) a person to whom a holding has been transferred or an estate or holding has been let in farm under the Himachal Pradesh Land Revenue Act, 1954 (6 of 1954) or the Punjab Land Revenue Act, 1887 (17 of 1887) as the case may be, for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear(;) (c) [ ******]” 16. The term ‘tenant’ has also been defined under sub-section (5) of Section 4 of the Punjab Tenancy Act, 1887 as follows:- “ ‘tenant’ means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to that other person; but it does not include— (a) an inferior land-owner, or 8 (b) a mortgagee of the rights of a land-owner, or (c) a person to whom a holding has been transferred, or an estate or holding has been let in farm, under the Punjab Land Revenue Act, 1887, for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear, or (d) a person who takes from the [Government] a lease of unoccupied land for the purpose of sub-letting it.” 17. The tenancy is the creation of contract between the parties which is required to be pleaded and proved. In Smt.Surjit Kaur alias Santo and another vs. Jarnail Singh and others 1965 P.L.J.137, after noticing definition of tenant in the Punjab Tenancy Act it has been held ‘tenant’ means a person who holds land under another person who is or, but for a special contract, would be liable to pay rent for that land to that other person. In Ram Karan vs. The Financial Commissioner and others 1980 P.L.J. 295, it has been held that tenancy, it cannot be disputed, comes into existence as a result of bilateral agreement which may be oral or documentary. In Mukat Singh vs. Smt. Jawala Devi and others 1983 P.L.J. 183, it has been held that a tenancy would come into existence only when there is a bilateral agreement between the parties about it. In Vinay Kumar and others vs. Parshotam Dass and others 1992 P.L.J. 77, it has been held that in order to prove the relationship of landlord and tenant, consent of both the parties was necessary. Such consent could be proved either from the documentary evidence or from oral evidence. The documentary evidence could be in the form of rent note, lease deed or payment of rent or batai. In Khazana Ram vs. Ghungar 1996 (1) Current Law Journal (H.P.) 424, it has been held that it is an admitted proposition of law that tenancy is the creation of an 9 agreement and in order to prove the factum of tenancy, the party claiming such a status, has not only to prove such an agreement but also to plead the same. In Prem Dass and others vs. Jagdish 1997(2) S.L.J. 984, it has been held that no doubt, the tenancy comes on the surface on account of a bilateral contract between the parties, but the entries forming record of rights cannot be ignored in the absence of any agreement or a contract. In Lal Chand and others vs. Pala 1998(2) S.L.J. 1526, it has been held that party claiming the status of a tenant has not only to prove the alleged agreement of tenancy but also to plead the name. 18. Ex.DW-1/A is the copy of jamabandi for the year 1966-67 showing plaintiff as tenant on the suit land on annual rent of ` 25/- and to the same effect is the entry in Ex.DW-1/B jamabandi for the year 1976-77, Ex.DW-1/C jamabandi 1971-72 and Ex.DW-1/D jamabandi 1981-82. Ex.DW-1/E and Ex.DW-1/F are the copies of Missal Hakiat. The plaintiff has not placed on record any order, agreement with appellant No.2 through Tehsildar Kasumpti for inducting him tenant on the suit land. The plaintiff has also not placed on record any revenue record to show his induction as tenant on the suit land around 1953 nor he has placed on record any rapat made to Patwari by him when he was allegedly inducted tenant on the suit land as claimed by him. 19. There is no foundation for entering plaintiff as tenant on suit land vide jamabandi for the year 1966-67 Ex.DW-1/A. In Durga (deceased) and others vs. Milkhi Ram and others 1969 P.L.J. 105, the Supreme Court has upheld the finding of the High Court that although the presumption would be in favour of the later entries but that presumption 10 was a rebutable one and it would stand rebutted by the fact that the alteration in the later entries was made unauthorisedly or mistakenly, there being no material to justify the change of entries. 20. In the present case, there is nothing on record on what basis the entry in jamabandi for the year 1966-67 was made. Once the change in favour of plaintiff in the jamabandi for the year 1966-67 has not been established, the subsequent entries in revenue record are based on change reflected in the jamabandi for the year 1966-67 which was unauthorized, hence respondents cannot take benefit of such change. Therefore, no presumption of truth is attached to revenue record showing plaintiff and thereafter his successor as tenant over the suit land from 1966-67 onwards. 21. The Article 299 of the Constitution provides that all contracts made in the exercise of the executive power of the Union or of a State shall be expressed to be made by the President, or by Governor of the State, as the case may be, and all such contracts and all assurances of property made in the exercise of that power shall be executed on behalf of the President or the Governor by such persons and in such manner as he may direct or authorise. It is not even the pleaded case of the plaintiff that he was inducted as tenant on the suit land in terms of Article 299 of the Constitution. It is also not the case of the respondents that Amar Nath Vij was inducted as tenant by appellant No.2 under some statutory powers vested in him. The entries showing Amar Nath Vij or Ajay Kumar as tenant on the suit land are unauthorized and unexplained and, therefore, respondents cannot take benefit of such entries. 11 22. The learned counsel for the respondents has submitted that respondents are entitled to conferment of proprietary rights under the Act since the name of Amar Nath Vij, plaintiff has been duly recorded as tenant on the suit land. It has been submitted that conferment of proprietary rights is automatic. In support of this submission, the learned counsel for the respondents has relied Daulat Ram and others vs. State of Himachal Pradesh and others 1979 Sim.L.C. 215, Mehar Chand and others vs. Rakesh and others Latest HLJ 2006 (HP) 1378 and Ramesh Chand vs. State of H.P. and others Latest HLJ 2007 (HP). There is no substance in this submission of the learned counsel for the respondents. Once it has been proved on record that Amar Nath Vij plaintiff was never inducted as a tenant on the suit land, then there is no question of automatic conferment of proprietary rights under the Act in favour of Amar Nath Vij or respondents. Moreover, the suit land belongs to Government and in view of State of H.P. Vs. Chander Dev and others Latest HLJ 2007 (HP) 728 wherein it has been held that proviso added at the end of sub section 9 of Section 104 of the Act by Amendment Act No.6 of 1988 is retrospective in nature and it also takes away the rights of persons which rights may have vested in them automatically under the provisions of the un-amended act. 23. In Guru Amarjit Singh vs. Rattan Chand and others AIR 1994 SC 227 it has been held that it is settled law that entries in the jamabandi are not proof of title. They are only statements for revenue purpose. It is for the parties to establish the relationship or title to the property unless there is unequivocal admission. The respondents have miserably failed to prove their tenancy on the suit land. Thus, taken from 12 any angle, the respondents have failed to prove that Amar Nath Vij plaintiff was inducted as tenant on the suit land by appellant No.2. The respondents have failed to prove their possession on the suit land. The learned District Judge has not properly appreciated the material on record. The substantial question of law No.2 is decided in favour of the appellants. The impugned judgment and decree are not sustainable. 24. The result of the above discussion, the appeal is allowed. The impugned judgment, decree are set-aside and the suit of the respondents/plaintiff is dismissed. No costs. ( Kuldip Singh ), Judge. February 21, 2011 (GR)