Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Regular Second Appeal No. 160 of 2006. Judgment reserved on : 15.7.2010. Date of Decided : August 11 , 2010. Smt.Janki. …… Appellant. Versus Smt. Rupii Devi and others. …….Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting? For the appellant : Mr. Romesh Verma, Advocate. For the respondents : Mr. Neeraj Gupta, Advocate. Surinder Singh, J. 1. This second appeal was admitted on 10.4.2006, on the following substantial question of law:- “(i). Whether the first appellate Court erred in law in holding that pleas of tenancy and adverse possession are not mutually destructive? (ii) Whether the findings of the first appellate Court are vitiated because of misreading and mis- construction of the pleadings of the parties and the evidence on record? 2. The appellant was plaintiff before the learned trial Court. She filed a suit for declaration to the effect that she is owner in possession of the suit land comprised in Khasra Nos. - 2 - 1029/85, 112, 135, 1031/173 and 210, total 5 measuring 11.1.6 bighas, situated in Muhal Khani/625, Tehsil Bali Chowki, District Mandi, H.P. to be referred as ‘the suit land’ hereinafter against the original defendant Netar Singh (now deceased), predecessor-in-interest of the respondents herein, with consequential relief of injunction. 3. The facts which emerges from the evidence on record can be stated thus: (i) Dhanu @ Dhani Ram deceased had two daughters’ plaintiff Janki and Smt. Jethi Devi wife of DW2 Shiv Ram and real aunt of defendant Netar Singh. (ii) During his life time, Dhanu bequeathed the suit land by executing a Will, in favour of his widowed daughter Janki plaintiff with whom he was living, which was challenged by Smt. Jethi during his life time. Smt. Jethi had appointed Sh. Khub Ram, father of defendant Netar Singh and real brother DW2 Shiv Ram, as her special attorney vide deed Ext. PW7/D in suit No.92 of 1979. (iii) The said suit challenging the Will was dismissed by the learned Senior Sub-Judge on 25.9.1987 vide judgment (Ex.PW5/A). - 3 - (iv) During the pendency of the said suit Dhanu executed a gift-deed on 2nd February, 1987 in favour of the plaintiff, which was duly registered, it was also challenged by Smt. Jethi aforesaid and in that suit (No.9/78-196/83), Smt. Jethi appointed her brother- in-law Sh. Tula Ram the another real brother of her husband Shiv Ram, as her special Attorney (Ext. PW7/F). The suit was filed on 20/2/1978, the gift deed was upheld and it was also dismissed by the learned Sr. Sub Judge vide a detailed judgment dated 5.7.1984 (Ex.PW5/C). (v) The appeals filed by Smt. Jethi against the judgment and decree in both the suits were dismissed by the learned District Judge. (vi) Dhanu died, in the later part in the year 1978. The mutation of his estate was sanctioned in favour of the plaintiff on the basis of Will. Its note was appended in the Jamabandi for the year 1981-82 Ext. PC. 4. The perusal of record reveals that defendant Netar Singh nephew of Shiv Ram (DW2) came to be recorded as non-occupancy tenant on his application moved in the year 1987, for correction of revenue entries ordered by the Naib- - 4 - Tehsildar, but later, as is evident from the order dated 27.8.92 (Ex.DA) passed by the Land Reforms Officer (LRO) the matter was challenged in appeal, which was set aside and ultimately on remand, it came before him (LRO) who virtually confirmed the order of Naib-Tehsildar without taking any evidence and directed to record Netar Singh as non- occupancy tenant with retrospective effect i.e. from the year 1983, contrary to the entries already existing in favour of the plaintiff or her father in the Jamabandi. 5. The case of the plaintiff-appellant has been that the order for the correction of the revenue entries in favour of said Netar Singh passed by LRO on 27.8.1992 was wrongly made effective retrospectively i.e. w.e.f. 1983. Since she was owner in possession, thus she felt aggrieved by this order, hence preferred an appeal before the Sub- Divisional Collector, Gohar, obtained the stay order against the implementation and execution of the said order in the revenue record, but the Patwari concerned in violation of stay orders incorporated the name of Netar Singh in the revenue record. It is alleged that under the garb of the said entries, Netar Singh the predecessor-in-interest of the respondents had tried to forcible dispossess the appellant - 5 - from the suit land. The said entries are alleged to have been made in contravention of the fundamental procedure, thus sought declaration qua her title with consequential relief of injunction, and alternatively prayed for possession, in case the defendants / respondents succeed to dispossess her lis- pendence. 6. Defendant Netar Singh offered a strong resistance to the suit on the grounds of maintainability of the suit, jurisdiction of Civil Court to try and hear the suit and also took up the plea of no cause of action. However, on merits, it is submitted that he i.e. the defendant Netar Singh was inducted as a non-occupancy tenant by said Dhanu @ Dhani Ram and he had become owner of the suit land by operation of law. He defended the order Ex.DA of LRO, alternatively, took up the plea of adverse possession, in case, the defendant is not proved to be a non-occupancy tenant. 7. On the pleadings of the parties, the following issues were framed:- (i) Whether the plaintiff is owner in possession of the suit land? …OPP. (ii) Whether the order dated 27.8.1992 passed by Assistant Collector Ist Grade is wrong and illegal, as alleged? …OPP. - 6 - (iii) Whether the suit is not legally maintainable, as alleged? …OPD. (iv) Whether this Court has no jurisdiction to try the present suit? …OPD. (v) Whether the plaintiff has no enforceable cause of action to file present suit, as alleged? …OPD. (vi) Relief. 8. Said Shri Netar Singh died during the pendency of suit as such his LRs the present respondents were brought on record. After the complete trial, learned trial Court answered Issues No.1 and 2 in favour of the plaintiff and others against the defendants and the suit was decreed, declaring the plaintiff-appellant as owner in possession of the suit land as the defendant-respondents have no right, title or interest in the suit land and the order Ex.DA dated 27.8.1992, passed by the Land Reforms Officer (Tehsildar) was declared to be null and void. There was also no evidence showing that the defendant or his successors had perfected the title by adverse possession, thus the consequential relief was also granted restraining the respondents from causing any interference into the peaceful possession of the plaintiff- appellant. 9. Legal representatives of Netar Singh deceased felt aggrieved and filed an appeal before the learned District - 7 - Judge. The first appellate Court reversed the findings on Issues No. 1 and 2 holding that the change of the revenue entries in favour of defendant Netar Singh was made by the revenue authorities pursuant to the order dated 27.8.1992 (Ex.DA) passed by the Land Reforms Officer, Chachiot, which were also upheld in appeal by the Divisional Commissioner vide order dated 7.9.98 (Ext.DX-6). Thus the entry was made following the fundamental principle of judicial procedure, as such, the said order was held to be legal and factually correct, therefore, held that the Civil Court has no jurisdiction, therefore, the judgment and decree passed by the learned trial Court was set aside consequently, the suit of the plaintiff-appellant was dismissed. Hence this second appeal by the plaintiff against reversal. 10. Shri Romesh Verma, learned counsel for the appellant vehemently argued that neither the Naib- Tehsildar was competent to entertain the application nor the LRO had jurisdiction to affirm the order of Naib-Tehsildar without recording the evidence of the parties without following the proper procedure nor the matter was pending before him either for resumption of the land by the land owner nor for conferment of proprietory right and also that - 8 - the LRO could not have endorsed the order of Naib- Tehsildar by putting reliance on the so called forged affidavit Ex.PW5/A (in fact it should have been Ex.DW5/A) which cannot be termed as affidavit, alleged to have been executed by Dhanu aforesaid in the year 1975. It is also argued that the Will as well as Gift Deed in favour of the appellant-plaintiff by Dhanu, were also assailed by filing suits as aforesaid by Smt. Jethi, daughter of Dhanu in collusion with her husband DW-2 Shiv Ram, and her brother-in-laws Khub Ram father of Netar Singh aforesaid and Tula Ram which were dismissed and again an attempt was made through Netar Singh to grab the land by seeking correction of revenue entries on the basis of so-called affidavit Ex.PW5/A. He also submitted that neither the said Revenue Officer nor the Commissioner had any jurisdiction to correct the long standing revenue entries in record of rights that too with retrospectively, which were in conflict of earlier entries in record of rights. He also argued that the order Ex.DA was also challenged before the Sub-Divisional Collector wherein the stay order was issued, but despite that the defendant Netar Singh in collusion with the Patwari succeeded to get it incorporated in the revenue record. He also argued that the appeal of Smt. Janki was accepted by the Sub-Divisional - 9 - Collector and the order Ex.DA was set-aside and the case was remanded back but against that Netar Singh filed an appeal under Section 14 of the H.P. Land Revenue Act and the Divisional Commissioner wrongly accepted the appeal of Netar Singh vide order Ex.DX/6 dated 7.9.98, more specifically when the present suit was sub-judice which fact also finds mentioned in his order but it was conveniently ignored. He also ventilated that the civil suit was filed by the appellant assailing the said orders of correction (Ex.DA) passed by LRO as without jurisdiction and without following the fundamental procedure, but the learned District Judge in appeal wrongly relied upon the entries which were under challenge from its very inception and were objected to by the appellant with tooth and nail which frustrated her genuine claim and cast a cloud on her right, which could have only been removed by filing the present suit. Thus, the learned first appellate Court committed an error and mis- appreciated the documentary and oral evidence on record. Further that the plaintiff-appellant has been proved to be in possession of the suit land, there is no iota of evidence on record to prove the possession and also the adverse possession of the respondents and both these pleas - 10 - i.e. tenancy and adverse possession have been self destructive. 11. Contra, Shri Neeraj Gupta, learned counsel for the respondent supported the judgment of reversal, passed by the first appellate Court. According to him, the Civil Court cannot go into the question whether the defendant Netar Singh was a tenant over the suit land, more specifically when the Revenue Officer rightly ordered the incorporation of defendant Netar Singh as a non-occupancy tenant over the suit land with retrospective effect in exercise of his powers vested in him under Rule 29 read with Section 104 of the H.P. Tenancy and Land Reforms Act, in short the ‘Act’ which was upheld in appeal by the Divisional Commissioner which has not been assailed in this suit. This order being final, therefore, the jurisdiction of civil Court is barred. 12. I have considered the rival contentions of the parties and have carefully gone through the record. 13. The Assistant Collector of the 1st Grade (LRO) mainly relied upon the affidavit Ext.PW-5/A alleged to have been executed by deceased Dhani Ram in the year 1975, whereas the application for correction of revenue entries was moved by deceased Netar Singh in the year 1987 that too after the death of Dhani Ram. In between 1975 till the moving of the said - 11 - application, two suits as aforesaid were filed by her aunt Jethi Devi against the present appellant, which were also dismissed and during that time Dhanu alias Dhani Ram was alive, he had supported the case of the appellant. The Revenue Officer while ordering the incorporation of Netar Singh in the revenue record, did not record any evidence. Only Jethi Devi had admitted him to be in possession, who was earlier already locked their horns in litigation with the appellant. Plaintiff did not admit the case of Netar Singh, but no evidence was called for from the appellant or her attorney during the correction of revenue proceedings. The LRO only relied upon the report of the Naib-Tehsildar alone who had earlier ordered for correction of the revenue entries. In my opinion, the learned trial Court rightly concluded that the order Ex.DA was passed ignoring the fundamental procedure and cannot be relied upon to establish the relationship of the landlord and the tenant inter-se the appellant or her predecessor-in-interest and the defendant aforesaid. The principle of natural justice was virtually denied to her. Further, order incorporating Netar Singh aforesaid with effect from 1983 in the record-of-rights on his application moved in the year 1987, vide order Ex.DA passed in the year 1992, was absolutely out of the ambit and jurisdiction of the - 12 - Land Revenue Officer. He had no jurisdiction to order correction of previous existing record of rights (jamabandis). 14. Further the affidavit Ext.PW-5/A is also shrouded by suspicious circumstances. Defendant Netar Singh did not refer to any such affidavit in his pleadings. It was suddenly placed on record in the statement of DW5 Mohar Singh. The said document tells its tale by itself, its perusal reveals that the name of Dhanu was already existing in record-of-rights. The name of Netar Singh was to be incorporated after the death of Dhanu, appears to be a cover-up story which is quite improbable, more specifically when his aunt and the plaintiff were already in logger-heads. 15. The learned trial Court also took note of the fact that Khube Ram the father of Netar Singh and Tule Ram his Uncle were fighting against the appellant as attorney of Smt. Jethi aforesaid for more than a decade and no reference was made with respect to possession of Netar Singh by them as a tenant. It is interesting to note that DW-2 Shiv Ram, the husband of Jethi Devi has also been cited as a witness in affidavit Ex.PW5/A, but as DW2 he did not testify in the court that such an affidavit was ever executed by deceased Dhanu. Otherwise also the said affidavit cannot be termed an affidavit in any respect as it does not contain any verification in - 13 - accordance with law and the certification made by DW-5 Mohar Singh the then Executive Magistrate stated that half of the patch of paper on the document Ext.PW-5/A containing his certificate was not pasted there. It has not been explained as to who had pasted this patch containing his signatures on the affidavit in order to believe that the said affidavit was attested by the Executive Magistrate aforesaid. 16. Further there is no record of the affidavit with the attesting authority. It is also clear that the affidavit aforesaid is thumb marked by the deponent, which is typed in English. There is absolutely nothing on record to show that the contents of this document were read over and explained to the deponent in vernacular language. 17. Against the above background the conclusion arrived at by the learned trial Court that the said document apparently appears to be a manufactured one is correct. 18. It was also the case of defendant Netar Singh that this document was taken on record by the Naib Tehsildar at the time of hearing of correction application and this also finds reference in the order of LRO Ext.DA. If that being so, how it came in possession of the defendant and produced in the statement of DW-5 during the trial of the case, remains a mystery? - 14 - 19. Further the document Ex.PW5/A falls short of an affidavit. Affidavit neither contains the witnesses nor it can be even without verification. Thus, it lacks the character of an affidavit from every angle. 20. In fact, the tenancy is a creation of an agreement between the landlord and tenant. Once the document Ext.PW- 5/A is taken out from consideration there remains nothing on record to prove the relationship of landlord and tenant inter-se the parties. The oral evidence to this effect is quite discrepant and unworthy of credence. 21. Against the above background it appears that when the aunt of the defendant Netar Singh, her husband and brother- in-law named above, failed to get the land in civil litigation, a method was invented to grab the land by means of alleged manufactured dubious document Ext.PW-5/A by engineering a plot to get incorporated his entry in revenue record to make it easy to grab the land in dispute. 22. Further the perusal of the orders passed by the revenue officers right from down to top except the Sub- Divisional Collector, show, how the administration of justice was throttled in a slip-shod manner to the prejudice of a widow following the procedure not interceded by law. In fact the LRO was not dealing with the matter under the HP Tenancy and - 15 - land Reforms Act, 1972 at all as ventilated by the opposite side counsel. He dealt with the matter under the H.P. Land Revenue Act, but the Land Revenue Act does not empower the Assistant Collector of any grade to order for the correction of record of rights with retrospective effect, which were incorporated earlier in accordance with law. 23. The entire facts narrated above reveal that the Revenue Officers aforesaid while dealing with the matter were neither aware of the procedure laid down under the Tenancy Act nor the H.P. Land Revenue Act, and ultimately the appellant was the casualty. Certainly, the Revenue Officer could not have ordered for the correction of regular record-of- rights retrospectively that too prior to the application for correction. 24. The first appellate Court wrongly relied upon the revenue entries, which were made in favour of the respondents, despite having been objected to through out by Smt. Janki. It is also borne out from the record that Patwari concerned had even ignored the stay issued by Sub-Divisional Collector not to implement the order which fact was also noticed by the Divisional Commissioner in his order. He showed his concern, about it but did not pass any order, rather - 16 - committed error that the respondent and others were rightly recorded as tenant, which shows his non-application of mind. 25. From the above discussion, I am of the firm view that Netar Singh was not inducted as a tenant by Dhanu. Once the relationship and tenancy is not established, there is no bar to a civil suit, thus the Civil Court has a jurisdiction to try and determine the suit. 26. The plea of tenancy raised by the defendant is not proved and the plea of adverse possession taken by him though both are mutually self-destructive, but however, the plea of adverse possession is in alternative regarding which no evidence was led. Therefore, the respondent has also failed to prove the alternative relief as prayed for. 27. No other point urged or pressed. 28. In result, the judgment of reversal passed by the first appellate Court is set-aside and that of the learned trial Court is restored and the suit filed by the plaintiff-appellant stands decreed qua the land aforesaid holding that she is the owner in possession of the suit land and the defendant-respondents, the legal representatives of Netar Singh have no right, title or interest in the land aforesaid and the order dated 27.8.1992 Ex.DA and also subsequent order of Divisional Commissioner in appeal both are null and void, also nonest on the rights of the - 17 - plaintiff-appellant. Consequently, the respondents are restrained from causing any interference in the possession of the suit land themselves or through their agents, servants or assignees in any manner. Consequently, the appeal is allowed. 29. The parties are left to bear their own costs. (Surinder Singh ) August 11, 2010. Judge (Pds)