IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSAs No. 408 and 409 of 1998. Reserved on: 12.08.2010 Date of decision: 13 .09.2010 RSA Nos. 408 and 409 of 1998: Mohi Ram and others ... Appellants Versus Smt. Dharmi and others … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No For the appellants: Mr. Karan Singh Kanwar, Advocate. (In both the appeals). For the respondents: Ms. Aruna Sharma vice Ms. Jyotsna Rewal Dua, Advocate. (In both the appeals). V.K. Ahuja, J. : This judgment shall dispose of the appeals filed by appellants Mohi Ram etc. against the judgment and decree of the Court of learned District judge, Sirmaur District at Nahan, dated 14.7.1998, vide which the appeal filed by the plaintiffs was dismissed and the appeal filed by the defendants was partly accepted and the judgment passed by the learned Sub Judge 1st Class, Paonta Sahib, was set aside in regard to land comprised in Khasra No. 732, while the plaintiffs were 1Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 declared to be tenants in respect of the land comprised in Khasra No. 605 only. 2. Briefly stated, the facts of the case are that the plaintiffs Mohi Ram etc. hereinafter also referred to as ‘the plaintiffs’, filed a suit for declaration alleging that they are non-occupancy tenants over the land comprised in Khasra Numbers 555, 605, 732 and 912 measuring 2-3 Bighas, 1-0 Bigha, 2-8 Bighas and 1-0 Bigha respectively, since they were inducted as non-occupancy tenants by previous owner Kanshia, predecessor-in-interest of the defendants. It was also alleged that the plaintiffs are owners in possession of the land comprised in Khasra Numbers 579 and 898 measuring 2-2 Bighas and 3-3 Bighas by way of oral sale effected by Kanshia, predecessor-in-interest of the defendants in favour of the father of the plaintiffs. The plaintiffs also alleged that in case oral sale is not proved, they have perfected their title by way of adverse possession and have become owners of these two Khasra Numbers. The entries in the revenue record of ‘Davedar’ mortgagee of the father of the plaintiffs was also challenged to be wrong and illegal and the entry over two Khasra Numbers 579 and 898 showing the defendants as owners was also challenged being illegal, null and void. 3. The defendants contested the suit. They took up the plea that Khasra Numbers 555 and 732 were mortgaged with the predecessor-in-interest of the plaintiffs for a consideration of Rs.4,300/- in Rabi 1974, but the predecessor-in-interest of the plaintiffs also occupied Khasra Numbers 605 and 912 min alongwith Khasra Numbers 555 and 732 claiming themselves to be the mortgagees and since then they are in possession of these four 3 Khasra Numbers. It was also pleaded that the defendants have filed an application for redemption before the Sub Divisional Collector and the allegations that the plaintiffs are tenants over the suit land were totally denied. In regard to Khasra Numbers 579 and 898, the defendants pleaded that they are owners in possession and no oral sale was effected and the plaintiffs were not in adverse possession of these two Khasra Numbers. 4. On the pleadings of the parties, the following issues were settled by the learned trial Court:- 1. Whether plaintiffs have become the owner in possession of the land denoted by Khasra No. 579/898 in village Bela by way of oral sale having been effected in the year 1970, as alleged? … OPP 2. If oral sale in question, is not proved, whether predecessors of the plaintiffs have become the owner of the suit land by way of adverse possession, as alleged? ……… OPP 3. If issue No. 2 is proved in affirmative, whether plaintiffs have succeeded the estate of their predecessors as owners, as alleged? … OPP 4. Whether revenue entries qua the suit land are wrong, void and fraudulent and are required to be rectified, as alleged? … OPP 5. Whether plaintiffs are non-occupancy tenants of the land denoted by khasra No. 555/605/732 and 912, situated in village Bela, as alleged? … OPP 6. Whether the plaintiffs have no locus standi to file the present suit, as alleged? … OPD 7. Whether this court has no jurisdiction to try and decide the suit, as alleged? … OPD 8. Whether the suit is bad for mis-joinder of causes of action, as alleged? … OPD 4 9. Whether the suit is not maintainable, as alleged? OPD … 10. Whether the suit is not properly valued for the purpose of court fee and jurisdiction, as alleged? … OPD 11. Relief. 5. Parties led their evidence and the learned trial Court vide its impugned judgment decided Issues No. 1 to 4 as against the plaintiffs and in favour of the defendants. In regard to Issue No. 5, it was held that the plaintiffs are non-occupancy tenants of Khasra No. 605 and 732 only. Remaining issues were also decided accordingly and the suit of the plaintiffs was partly decreed and they were declared in possession of Khasra Nos. 605 and 732 only. 6. Two appeals were preferred by parties and the learned District Judge vide its impugned judgment held that the appeal filed by the plaintiffs deserves to be dismissed and was dismissed accordingly and the findings recorded by the learned Sub Judge in regard to Khasra Number 732 was set aside and the plaintiffs were declared to be tenants in respect of land comprised in Khasra No. 605 only. 7. I have heard the learned counsel for the parties and have gone through the record of the case. 8. The submissions made by the learned counsel for the appellants were that the learned District Judge had given contradictory findings in regard to Khasra Numbers 555 and 732 and the copies of revenue record have not been appreciated showing the appellants as mortgagees on Khasra Numbers 555 and 732. The findings holding that the appellants were not tenants over Khasra No. 732 were also 5 challenged to be incorrect and confirming the findings of learned Sub Judge in regard to the pleas of oral sale or adverse possession were wrongly affirmed by the learned First Appellate Court. 9. The appeal was admitted on the following substantial questions of law:- 1. Whether the appellants are tenants on Khasra Nos. 555, 732 and 912 and the learned District Judge has misconstrued, misinterpreted Jamabandies for the years 195-56 to the years 1988-89 and the view taken by him that the appellants are not tenants on these Khasra numbers is not correct? 2. Whether the learned District Judge has erred in not relying upon and ignoring agreement Ex. PX in support of the case of the appellants that they are tenants on part of the suit land? 3. Whether the learned District Judge has misconstrued the case of the appellants that they have under oral sale purchased land comprised in Khasra Nos. 579 and 898? 4. Whether the learned District Judge has misconstrued the case of the appellants of the adverse possession in alternative, in case oral sale is not proved regarding Khasra Nos. 579 and 898. 10. Coming to the substantial questions of law that the learned District Judge has misconstrued the case of the appellants in regard to oral sale and for adverse possession in the alternative. The findings in regard to these two substantial questions of law are to be considered. Issues No. 1 to 3 were framed in this regard and the learned Sub Judge had clearly observed that statement of plaintiff Mohi Ram as PW-3 and PW-2 Jagat Singh were not sufficient to prove the plea of oral sale. No receipt could be produced on record nor the 6 mater was reported to the Patwari in the year 1971. It was rightly observed that the sale of the land of the value of ore than Rs.100/- requires compulsory registration. A perusal of the copies of jambandi Ext. P-11 and Ext.D-1 for the year 1988-89 shows that the defendants were duly recorded as owners in possession of the suit land. The plaintiffs had also claimed that they have raised construction over this land, but there was no entries of abadi in the copy of jamabandi for the year 1988-89 and the nature of the land was shown as Kuhal Doam Ghasni. These findings were affirmed by the learned First Appellate Court after referring to the oral as well as documentary evidence and both the Courts have given the findings of fact that the plea of oral sale was not substantiated from the evidence. A perusal of the plaint filed by the plaintiffs also shows that they have not alleged as when they are in adverse possession and from which date their permissive possession on the basis of oral sale become adverse as against the true owners. Neither there were any specific allegations in regard to date, month or year when the possession of the plaintiffs became adverse nor these were substantiated by any cogent and reliable evidence. Therefore, in view of the above discussion, the findings of both the Courts below are that the plaintiffs have failed to prove the oral sale in their favour or that they have become owners by way of adverse possession are liable to be affirmed accordingly. 11. Coming to the findings recorded in regard to Khasra Numbers 555, 732 and 912, a reference may be made to the copies of jamabandis placed on record. A perusal of Ext. D-2, a copy of jamabandi for the year 1983-84 shows that the predecessor-in- 7 interest of the plaintiffs was shown in the ownership column in regard to these Khasra Numbers 555 and 732 and not over Khasra Number 912. Similar entries are reflected in Ext. D-3, a copy of jamabandi for the year 1978-79. A perusal of copy of jamabandi for the year 1973-74 in regard to Khasra Numbers 555 and 732 shows that the predecessor-in-interest of the defendants was shown as occupancy tenant, while the cultivation has been shown to be that of the predecessor in-interest of the defendants as mortgagee over these two Khasra Number. The entries in column No. 9 also shows that no rent was payable because of the mortgage. A perusal of the entry in the copy of jamabandi for the year 1972 onwards also shows the predecessor-in-interest of the defendants as occupancy tenant and thereafter there is a entry that from Rabi 1974, the possession has been entered as that of predecessor-in-interest of the plaintiff as mortgagee for a sum of Rs.1800/-. A perusal of rapat Ext. PW1/A also shows that there was change in cultivation in regard to Khasra Numbers 555 and 550 min and Khasra No. 732. A copy of jamabandi for the year 1955-56 Ext. P-6 shows the possession of predecessor-in-interest of the defendants as Marrusi. Ext. P-2 a copy of jamabandi for the year 1959-60, Ext. P-3 a copy of jamabandi for the year 1963-64 and Ext. P-4 a copy of jamabandi for the year 1968-69 are not very material in view of the entries in the subsequent jamabandis showing the change in favour of the predecessor-in-interest of the plaintiffs as mortgagee. A perusal of Ext. P-8 a copy of jamabandi for the year 1983-84 shows that Khasra Numbers 555 and 732 were shown in possession of the predecessor-in-interest of the plaintiffs as Kabij in possession and Khasra Number 605 was also 8 shown in their possession alongwith these Khasra Numbers, while Khasra Number 912 min was shown in view of the predecessor-in- interest of defendants as mortgagee. A perusal of Ext. P-9, a copy of jamabandi for the year 1988-89 also shows that the predecessor-in- interest of the plaintiffs was shown as Kabij over three Khasra Numbers 555, 605 and 732, while Khasra Number 912 was entered as mortgagee. 12. It follows from the above discussion that two Khasra Nos. 555 and 732 were mortgaged, but the possession of the predecessor- in-interest of the plaintiffs was also shown in the later revenue record as Kabij, which suggests that the possession might have been taken by the plaintiffs at the time when two Khasra Numbers were mortgaged with them. There was no entry showing the plaintiffs in possession over any of these Khasra Numbers as tenants and the entries are either Kabij or mortgagee and the plaintiffs themselves are claiming that the entries showing them as mortgagees are wrong, but there was no proof of payment of any rent and accordingly, the learned trial Court had concluded that the plaintiffs are in possession of these Khasra Numbers, though they have not been able to prove their tenancy. The defendants had admitted in their written statements that the plaintiffs are mortgagees over two Khasra Numbers and possession of other Khasra Numbers 605 and 912 was taken by them claiming themselves to be mortgagees. 13. The learned trial Court had relied upon the compromise Ext. D-7 proved from the statement of DW Kanwar Singh who was the 9 scribe of the document and he had referred to the compromise having been executed in between the parties. It was also allegedly signed by the defendants, also thumb marked and signed, but this was never put up to the one of the plaintiffs when he appeared in the witness box as PW-2 Jagat Singh and as such, it could not have been relied upon once it was not put up to him in his cross-examination and was proved subsequently. Therefore, no benefit can be taken by the defendants. In regard to this compromise Ext. D-7, the plaintiffs had also produced a compromise Ext. P-6 entered into in between the parties in regard to these two Khasra Numbers 605 and 732, in which the defendants had agreed to relinquish their rights over Khasra Numbers 605 and 732. One of the defendants had appeared in the witness box as DW-1 and this document Ext. PX has not been put up to DW-2 Dharmi, defendant No. 1, in her cross-examination and since it was a private document, it was required to be proved according to law and the defendant was required to be confronted with this document and, therefore, the learned trial Court had wrongly relied upon these documents. Therefore, it has to be held that the plaintiffs had failed to prove themselves as tenants over the land comprised in Khasra Numbers 555 and 732 and the plea of the defendants had a substance that they were in possession as mortgagees, for which they had filed an application for redemption as pleaded in their written statement. The learned trial Court had wrongly held the plaintiffs as tenants over Khasra No. 732 on the basis of the agreement Ext. PX, since this document was never put up to the defendants and it was never pleaded by the plaintiffs in the plaint. However, in regard to Khasra No. 912min, the possession of predecessor-in-interest of the plaintiffs 10 has been shown for the first time in the jambandi for the year 1978-79 Ext. P-10 as mortgagee and this entry continued in subsequent jamabandis and their entry was shown in the revenue record as claimants/mortgagees and not as tenants. The findings of both the Courts below that the plaintiffs were not the tenants upon Khasra Number 912min are liable to be affirmed. However, there is no basis to show the entry of the predecessor-in-interest of the plaintiffs as Gair Marrusi in regard to Khasra No. 605, though the predecessor-in- interest of the plaintiffs was recorded in possession of this land also apart from the two Khasra Numbers. Thus, it is held that the plaintiffs are in possession of the suit land as mortgagees over Khasra Numbers 555 and 732, but there are no basis for the findings recorded by the learned trial Court holding that the plaintiffs are tenants in respect of land in Khasra No. 605. The findings recorded by both the courts below are modified to this extent that the plaintiffs are in possession of the suit land as mortgagees over Khasra Numbers 555 and 732, but they are not in possession as tenants over Khasra No. 605 as held by the learned trial Court and affirmed by the learned First Appellate Court. The plaintiffs are entitled to the relief in regard to Khasra Numbers 555 and 732 as detailed above. The relief granted in regard to Khasra Number 732 by the learned trial Court was wrongly modified by the learned First Appellate Court and as such, the appeals filed are partly accepted as detailed above. 14. The judgment and decree passed by the Courts below is modified to the extent that the plaintiffs are mortgagees in possession over Khasra Numbers 555 and 732. They are also in possession of Khasra Numbers 605 and 912 without any capacity, as 11 admitted by the defendants in their written statement. The findings in regard to Khasra No.579 and 698 of the learned Sub Judge dismissing the suit and affirmed by the learned District Judge are upheld. Both the appeals filed by the appellants stand partly allowed accordingly. A certified copy of this judgment be placed on the record of RSA No 409 of 1998. ( V.K. Ahuja ), September 13, 2010 Judge (BSS)