IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 22 of 1996. Reserved on : 27.3.2008 Decided on: 07.05.2008. Hari Ram & Anr. …Appellants. Versus Smt. Pano Devi & Others ..Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting ?1 Yes. For the Appellants : Mr. Praneet Gupta, Advocate. For respondents No.1 & 2: Mr.R.K.Gautam, Senior Advocate with Ms. Archna Dutta, Advocate. ______________________________________________________________ Rajiv Sharma, Judge This Regular Second Appeal is directed against the judgment of the learned District Judge, Una, H.P. passed in Civil Appeal No.40 of 1992/RBT No.230 of 1993 dated 27-12-1995. The brief facts necessary for the adjudication of the Second Appeal are that the plaintiffs – respondents (hereinafter referred to as the ‘plaintiffs’ for convenience sake) had filed a suit for declaration and permanent injunction against the appellants-defendants (hereinafter referred as ‘defendants’ for convenience sake). The case set up by the plaintiffs in the suit was that the land in question measuring 10 Kanal 11 Marlas comprised in Khasra Nos. 51, 52, 54, 297 and 301 was in possession of Maghar as tenant on payment of rent under the owners for the last many years. Shri Maghar 1 Whether reporters of Local Papers may be allowed to see the Judgment ? 2 died on 26.10.1980 and he had become owner of the land by virtue of H.P.Tenancy and Land Reforms Act w.e.f. the appointed day i.e. 3.10.1975. Since Maghar died without any male issue and was succeeded by his daughters i.e. plaintiffs and Smt. Satya Devi as owners in possession. The defendants No.1 & 2 on the basis of this statement made by Smt.Satya Devi without their knowledge, procured an order from the C.O., Una on 17.12.1985 in their favour. The defendants No.1 & 2 had pleaded that the land in question was in “Hissadari” possession of the owners and it was never in possession of Maghar in any capacity at any time. In other words, it was pleaded that Maghar had not become owner of the land. They have also placed reliance upon the Gift Deed made in favour of Smt. Satya Devi by Maghar. The learned Trial Court on the basis of the pleadings of the parties had framed the following issues: 1. Whether the plaintiff alongwith defendant No.3 are owners in possession of the suit land as alleged ? OPP 1-A. Whether Maghar was tenant of suit land and had become its owner as alleged ? OPP 2. Whether the plaintiff has no locus standi to file the suit ? OPD 3. Whether the plaintiff has no cause of action ? OPD. 4. Relief. The learned trial Court had recorded the following findings on the issues framed for determination: Issue No.1 : No. Issue No.1-A: No. Issue No.2 : Yes. Issue No.3 : No. Relief : Suit dismissed as per operative part of the judgment. 3 The learned trial Court dismissed the suit preferred by the plaintiffs against which they preferred an appeal before the Learned District Judge, Una. The learned District Judge, Una has framed the following points for determination: 1. Whether the findings of the ld. Trial Court are sustainable in the eyes of law? 2. Relief. The learned District Judge, Una has recorded the following findings on the points for determination framed by him: Point No.1 : No. Relief : Appeal accepted per operative part of the judgment. The learned District Judge, Una allowed the appeal preferred by the plaintiffs on 27.12.1995. Mr. Praneet Gupta, Advocate appearing on behalf of the defendants/appellants had strenuously argued that the judgment and decree passed by the learned District Judge, Una dated 27.12.1995 is not sustainable in the eyes of law. He then contended that the learned District Judge had mis- read and misconstrued the oral as well as documentary evidence brought on record. Mr. R.K.Gautam, Senior Advocate with Ms. Archna Dutta, Advocate had supported the judgment of the learned District Judge, Una dated 27.12.1995. This Regular Second Appeal was admitted on substantial questions of law attached with this appeal, which reads thus: 1. Whether the judgment and decree passed by the learned lower Court is vitiated on account of misreading the documentary as well as oral evidence besides pleadings ? 4 2. Whether the judgment of the learned lower appellate Court is vitiated on account of misreading the document Exhibit PW-3 placed on record ; the order of the Consolidation Officer, Una? Since both these questions are inter-connected, they have been taken up together for adjudication. I have heard the learned counsel for the parties and perused the record carefully. Ext.P-9 is the copy of Jamabandi for the year 1962-63, Ext.P-7 is the copy of Jamabandi for the year 1967-68, Ext.P-6 is the copy of Jamabandi for the year 1972-73, Ext. P-5 is the copy of jamabandi for the year, 1978-79 and Ext.P-2, & Ext. D-1 are copies of jamabandis for the year 1984-85 mentioning Maghar, predecessor-in-interest of the plaintiffs and proforma defendant/respondent No.3 in possession as a tenant under the owners. Maghar had died on 26.10.1980. The appellants/defendants had placed reliance on order dated 17.12.1985 passed by the C.O., Una vide Ext.P-3. It appears from the record that an application for correction of disputed khasra numbers was filed by the appellants against the proforma defendant Smt. Satya Devi. The application was filed on 7.11.1984 and had been decided on 17.12.1985. The corrections were ordered by the C.O. on the basis of the statement and Gift Deed. Mr. Praneet Gupta has failed to show from the record that the statement of the plaintiffs was ever recorded while effecting the changes by the C.O. As far as Ext.P-4 is concerned, this statement has been made by Sh. Kartar Singh, husband of respondent No.3 – Smt. Satya Devi. Smt. Satya Devi had only 1/3rd share out of the total land and she could not alienate the share of other co-sharers i.e. plaintiffs. This statement made by her husband Kartar Singh could not bind the plaintiffs. The order passed by the C.O. dated 17.12.1985 was a nullity as rightly observed by the learned District Judge, Una. 5 PW-1 Surinder Kumar has proved the death certificate Ext.P1. PW-2 Bhandari Singh is the Mukhtiar of one of the plaintiffs and has clearly stated about the possession of Maghar since 1947. PW-3 Kishan Chand has corroborated the statements of the plaintiffs. PW-4 Rajinder Prasad, Patwari has mentioned about the proceedings during consolidation. DW-1 Hari Ram has mentioned about the Gift Deed made by Maghar in favour of Smt. Satya Devi in the year 1971. Shri Maghar had become owner of the property after coming into possession of H.P.Tenancy and Land Reforms Act, w.e.f. 3.10.1975. He was not absolute owner of the land in the year 1971. Thus, he could not make gift of the property to Smt. Satya Devi as stated by DW-1 Hari Ram. DW-2 Sita Ram and DW-3 Khushi Ram had supported the appellants/defendants to the effect that they were in possession of the land. Cumulatively, it is evident from the evidence brought on record oral as well as documentary that right from 1962-63 onwards for more than 20 years, Maghar, predecessor-in-interest of the plaintiffs and respondent No.3 Smt. Satya Devi was duly recorded as tenant over the suit land. He became owner of the land w.e.f. 3.10.1975. It has come in the statement of the plaintiffs that wheat was also grown on the land in question. Once Maghar had become owner of the land , his daughters i.e. plaintiffs and Smt. Satya Devi were to succeed under the Hindu Succession Act. The trial Court was bound to consider the revenue entries existing w.e.f. 1962-63 onwards coupled with the fact that H.P.Tenancy and Land Reforms Act was also enforced w.e.f. 3.10.1975. The presumption of truth is attached to the Jamabandis which the defendants/appellants have failed to rebut. The finding recorded by the learned Appellate Court with regard to the possession is also re-affirmed by this Court. The revenue entries as per statements made by the defendants/appellants is only on the basis of the order passed by the C.O. on 17.12.1985. The C.O. could not pass the order merely on the basis of the statement made by the husband of 6 respondent No.3 Smt. Satya Devi and Gift Deed made in the year 1971. There is overwhelming evidence on record to the effect that Maghar was earlier the tenant under the owners and thereafter coming into force of the H.P.Tenancy and Land Reforms Act, w.e.f. 3.10.1975, he had become absolute owner of the property. C.M.P.No.563 of 2007 This application for placing on record Annexure A-1 and Jamabandi for the year 1972-73 at this belated stage of hearing is liable to be dismissed, more particularly, when Maghar had become absolute owner automatically after the commencement of the H.P.Tenancy and Land Reforms Act, w.e.f. 3.10.1975. Accordingly, there is no substantial question of law involved in the Second Appeal and the same is dismissed, being devoid of any merit. The parties will bear their own costs. ( Rajiv Sharma ), J. May 7, 2008. (GR)