IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 240 of 2000 Date of Decision : January 04, 2010 Sh. Shesh Kumar Appellant Versus Sh. Kuldeep Raj and others Respondents Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant : Sh. Raman Sethi, Advocate, for the appellant. For the respondent s : Sh. R. K. Sharma, Advocate, for the respondents. Sanjay Karol, J. (Oral) The appellant herein being defendant in the suit, has filed this Regular Second Appeal under Section 100 of the Code of Civil Procedure, assailing the concurrent findings of fact recorded by the Courts below. Civil Suit No. RBT. 1039/95/91, titled as Sh. Ram Chand and others versus Sh. Shesh Kumar, filed by the plaintiffs/respondents, was decreed by the Court of Sub Judge, Ist Class, Jawali, Distt. Kangra, H.P. in terms of its judgment and decree dated 28.3.1998. The same was affirmed in defendant’s Civil Appeal No. 31-J/98, titled as Sh. Shesh Kumar versus Sh. Ram Chand and others, by the Addl. District Judge (I), Kangra at Dharmshala, H.P. in terms of its judgment and decree dated 4.5.2000. 1 Whether reports of Local Papers may be allowed to see the judgment? 2 The appeal was admitted on the following substantial questions of law:- 1. Whether the non-occupancy tenancy rights governed by the Punjab Tenancy Act and the Punjab Security of Land Tenures Act are heritable under the General Law of Succession? 2. Whether a court can decide an application for amendment of the pleadings after the dismissal of the appeal? 3. Whether the learned lower appellate court could have dismissed the application for amendment on the ground that the appeal had been dismissed? As per the plaintiffs, the suit land was admittedly let out to one Sh. Faquir Chand, who was the Nana (maternal grand father) of the defendant. After his death in the year 1970, plaintiffs started cultivating the same when possession was taken over by them. The revenue entries continued to show Sh. Faquir Chand as a tenant even upto 1991 when behind the plaintiffs’ back and in connivance with the revenue officials, the defendant got the revenue record manipulated to show him to be in possession of the suit land as a tenant. Since the defendant started raising construction on the same, the plaintiffs filed a suit for declaration to the effect that they are the owners and the revenue entries reflecting the defendant and Sh. Faquir Chand as joint tenants are illegal and void. Consequential relief of restraining the defendant from interfering with the plaintiffs’ possession over the suit land was also prayed for. The defendant resisted the suit by taking a categorical stand that he alongwith Sh. Faquir Chand were tenants in Sherakat (partnership) over the suit land and after the death of Sh. Faquir Chand he alone has 3 become tenant and by virtue of the provisions of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 has even acquired title thereof. On the pleadings of the parties the trial Court framed the following issues: “1. Whether the plaintiffs are owners of the suit land, as alleged? OPP 2. If Issue No. 1 is proved in affirmative, whether the revenue record disclosing Faqiru son of Ghamandi as tenant jointly with Shesh Kumar is illegal, void and not binding upon on the plaintiffs qua the suit land, as alleged? OPP 3. Whether the plaintiffs have no locus-standi to file the present suit, as alleged? OPD 4. Whether the suit of the plaintiffs is not maintainable in the present form, as alleged? OPD 5. Whether the plaintiffs are estopped to file the present suit by their own acts and conduct, as alleged? OPD 6. Whether the suit of the plaintiffs is time barred, as alleged? OPD 7. Whether the plaintiffs have not come to the court with clean hands and have suppressed the material, as alleged? OPD 8. Relief.” Opportunity to lead evidence was afforded to the parties and based on the statements of the plaintiffs’ witness namely Sh. Ram Chand (PW-1) and defendant’s witnesses namely Sh. Shesh Kumar (DW-1) and Sh. Babu Ram (DW-2) as also the documentary evidence, being the revenue record Ext.P1, Ext.P2, Ext.P3, Ext.P4, Ext.P5 and Ext. D-1 & Ext. D-2, the trial Court held that the defendant failed to prove the fact that he was ever inducted as a tenant in his own right or that he had been paying any 4 amount of rent to the plaintiffs. He further failed to prove that consequent upon the death of Sh. Faquir Chand, he had cultivated the suit land himself. On the contrary, the plaintiffs were able to prove that after the death of Sh. Faquir Chand not only did they take over possession of the suit land but also started cultivating the same in their own right. The trial Court found the defendant to have constructed a house on the suit land. Consequently in terms of judgment and decree dated 28.3.1998, the trial Court decreed the suit as under: “In view of my findings on above issues, the suit of the plaintiffs is hereby decreed against the defendant to the effect that the plaintiffs had been owners in possession of the land comprised in Khewat No. 54 Min, Khatauni No. 146, Khasra Nos. 694, 695, Plots-2, measuring 0-63-33 HM, measuring 0-63-33 HM, situated in Mohal Kardial, Mauza Jawali, Distt. Kangra, H.P. as per Missal Hakiyat Bandobast Jadid Sani for the year 1984-85, and are entitled to remain in possession in future as well and the defendant has no right whatsoever over the suit land, and the revenue entries showing Faqir son of Ghamandi as tenant jointly with Shesh Kumar Dohta of Faqir are illegal, void and redundant and are not binding on the plaintiffs; with a consequential relief that the defendant be restrained by a permanent injunction from claiming any right, title or interest over the suit land and for possession of the suit land by demolition of structure whatsoever raised by the defendant on the suit land. However, seeing the circumstances of the case, the parties are left to bear their respective costs. Decree sheet be drawn up accordingly.” 5 The defendant assailed the same by filing an appeal. An application under Order 6 Rule 17 CPC for amendment of the pleadings was also filed by him in the appeal. After hearing the learned counsel for the parties the appeal was dismissed in terms of the impugned judgment and decree dated 4.5.2000 and the application was dismissed vide separate order of the same date, which reads as under: “The appeal is dismissed vide my separate judgment of even date placed on the file. In view of the disposal of the appeal, application under Order 6 Rule 17 C.P.C. is also dismissed. Even otherwise also the same is not tenable for the reason that the tenancy of the defendant is not proved. As such the proposed amendment becomes irrelevant, especially, when it is also not necessary to determine the real controversy between the parties. The file after due completion be consigned to record room.” No doubt, factum of dismissal of the appeal finds mention in the order, but as is evident is not a ground for rejection of the application. The lower Appellate Court came to a categorical conclusion that the proposed amendment was not necessary for determining the real controversy between the parties. Hence Mr. Raman Sethi, learned counsel for the appellant is not right in contending that the court below had dismissed the application on the ground that appeal stood dismissed. Thus the substantial questions of law No. 3 and 4 do not arise for consideration in the present appeal. In the instant appeal there is no dispute with regard to the defendant’s right of inheritance. The question which arises for consideration is as to whether in view of the provisions of Section 8 of the 6 Punjab Security of Land Tenures Act, 1953 the right of continuing with the tenancy survives in favour of the defendant or not. The Courts below, by way of concurrent findings of fact have held the plaintiffs’ to be in cultivatory possession of the suit land after the death of Sh. Faquir Chand. From the record it could not be shown as to how the same are incorrect, erroneous or not borne out from the record. In fact defendant has taken contradictory pleas. Defendant has pleaded to be a joint tenant with Shri Faquir Chand, whereas orally it is urged that his rights flowed through late Shri Faquir Chand. He has failed to prove his independent right in the tenanted premises. From the revenue record pertaining to the years 1971-1972 up to 1984-1985 (Ext. P-1, Ext.P-2, Ext.P-3, Ext.P-4 and Ext.P-5), it is evident that it was only Sh. Faquir Chand who was the plaintiffs’ tenant. For the first time defendant’s name came to be reflected in the revenue record only in the years 1989-90 (Ext. D-1) and 1994-95 (Ext. D-2). The lower Appellate Court has correctly relied upon the provisions of the Himachal Pradesh Land Records Manual (Clause 9 – 8) to arrive at its conclusion that no order, as is required under law, was ever passed in favour of the defendant before the entries in the revenue record were inserted. Thus in the absence of any material on record, it cannot be said that defendant himself was a tenant in the suit land. There is no dispute that Sh. Faquir Chand was plaintiffs’ tenant and continued as such till the time of his death in the year 1970. There is also no dispute that Sh. Faquir Chand had no male issue. In the instant case, admittedly widow of Sh. Faquir Chand had pre-deceased him. It also cannot be disputed, in view of the concurrent findings of fact, that the 7 defendant had tilled the land in his own right either during the life time of Sh. Faquir Chand or thereafter. Section 4 sub-section (5) of the Punjab Tenancy Act, 1887 defines tenant. It does not create any distinction between an occupancy tenant or a non occupancy tenant. Section 8 of the Punjab Security of Land Tenures Act, 1953 reads as under: “Continuity of tenancies. The continuity of tenancy shall not be affected by – (a) the death of the landlord, or (b) the death of the tenant, except when the tenant leaves no male lineal descendants or mother or widow, and (c) any change therein under the same landowner: and for the purposes of sections 17 and 18 of this Act, such tenancy shall be the last area so held.” The Act does not create a distinction between an occupancy and a non occupancy tenant. The Act categorically deals with all types of tenancies. Undisputedly, as on the date of his death, Sh. Faquir Chand did not have any male lineal descendant, mother or widow who were alive. Hence right of continuation of tenancy had come to an end. Mr. Raman Sethi, learned counsel for the appellant has referred to a decision rendered by this Court in Smt. Nathi vesus Shri Neel Chand, 1997 (2) Sim. L.C. 179. I am afraid the ratio laid down is not applicable to the instant facts. Therein the Court was dealing with the question of inter se rights of inheritance between the legal heirs of the deceased tenant which is not the case here. The substantial question of law No.1 also does not arise for consideration as right of inheritance is not in issue. 8 For the aforesaid reasons I find no reason to interfere in the present appeal and the same is accordingly dismissed. There is no illegality or perversity. (Sanjay Karol), Judge. January 04, 2010 (PK)