IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 458/2008 Reserved on: 27.6.2011 Decided on:8.7.2011 ___________________________________________________ Karam Chand alias Karmu …Appellant. Versus Jagdish Singh and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the appellant : Mr. Ramesh Sharma, Advocate. For the Respondents : Mr. Atul Jhingan, Advocate. _____________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 31.5.2008 rendered by the learned Additional District Judge, Una in Civil Appeal No.27 of 2005. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the appellant- plaintiff (hereinafter referred to as ‘plaintiff’ for convenience sake) instituted a suit seeking permanent injunction restraining the respondents-defendants 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 (hereinafter referred to as ‘defendants’ for convenience sake) from interfering in the peaceful possession of the plaintiff alongwith other co-sharers in land measuring 0-03-95 hectares comprised in Khewat No. 472, Khatauni No. 1274, Khasra Nos. 1645 and 1648 situate in village Nandpur, Tehsil Amb, District Una. According to the plaintiff, he alongwith Bishan Dass and successor-interest of Munshi Ram had been coming in possession of the suit land for more than 40 years without any obstruction and hindrance and has become owner by operation of Himachal Pradesh Village Common Land Vesting and Utilization Act (hereinafter referred to as ‘the Act’ for brevity sake). Suit land was previously bearing Khasra No. 1646 and prior to this, Khasra No. 1524 and was measuring 2-8 kanals. Defendant No.1 had retired from the Revenue Department and succeeded in incorporating his name as tenant-at-will on the part of the suit land. The defendant never came in actual physical possession nor the plaintiff ever parted with the possession. 3. The suit was opposed by filing written statement. According to the defendants, they were coming in possession of the suit land as tenant-at-will. They had built cattle shed over the part of the suit land. 3 The plaintiff was never in possession over the suit land and he had not become owner by way of adverse possession or under the provisions of the Act. The revenue entries showing the possession of the defendant was correct. The settlement operation was carried out and possession had been confirmed by the L.R.O. The defendants were aggrieved by the entry of Mukhtalif Kabza Naziaz and, therefore, preferred an appeal before the A.S.O., Una, who accepted the appeal and previous entry was restored. Mutation was also sanctioned in favour of the defendants. 4. Replication was filed by the plaintiff. The trial court framed issues on 15.12.1998. Learned Civil Judge (Senior Division), Amb dismissed the suit on 19.2.2005. Plaintiff preferred an appeal before the Additional District Judge, Una. He dismissed the same on 31.5.2008. Hence, the present Regular Second Appeal. 5. Mr. Ramesh Sharma on the basis of the substantial questions of law framed at page 7 of the paper book has vehemently argued that both the courts below have misconstrued and misread the oral as well as documentary evidence. According to him, his client 4 had become owner by way of adverse possession and had also become owner under the previsions of the Act. 6. Mr. Atul Jhingan has supported the judgments and decrees passed by both the courts below. 7. I have heard the learned counsel for the parties and have gone through the substantial questions of law carefully. 8. Plaintiff has appeared as PW-1. According to him, he, Bishan Dass and successor-in-interest of Munshi Ram were in possession of the suit land. He has become owner under the provisions of the Act. Defendant No.1 got his name entered as non-occupancy tenant and he was not in possession of the suit land. The entry had been made without any basis and on the strength of defendant No.1 being Kanungo. 9. According to jamabandi for the year 1993- 94, land bearing Khasra No. 1646 was shown in possession of bashindgan deh and in possession of Jagdish, Dilbagh and Baldev sons of Kishan Singh son of Kulfi Ram as non-occupancy tenant. It was entered in the column of remarks that as per order of L.R.O., entry in favour of defendant has been recorded. Similar entry was also existing in the copy of jamabandi for the 5 year 1978-79 wherein as per Khatauni No. 471/863 min, there were names of Jagdish, Dilbagh, Baldev and Bakshish Singh to the extent of 1/4th share regarding Khasra No. 1646. 10. According to jamabandi for the year 1945-46 Ex.P-1, the suit land, which was initially shown as khasra No.1524 measuring 2-8 marlas was ‘shamlat deh hassab hissa jadid’ and in the possessory column, the predecessor-in-interest of the defendants was shown in possession and the plaintiff and his brother had also been shown in the said column. In Ex. P-2, jamabandi for the year 1954-55, both the parties were continued to be reflected as such. In Ex. P-5, jamabandi for the year 1978-79, the defendants have been shown as sub- tenants. In the year 1983-84, the suit land was bifurcated into two mins, one measuring 1-8 kanal and other 1-0 kanal. The land measuring 1 kanal was shown in possession of the defendants to the exclusion of the plaintiff whereas qua another land measuring 1-8 kanal, the plaintiff had been shown as co-tenant with the defendants and other co-sharers. The plaintiff has never moved application for the correction of revenue entries. The order of L.R.O. dated 8.3.1989 and subsequent order passed by the S.O. on 9.5.1997 at the 6 instance of defendant Jagdish Singh, were merely for the correction of the entries. It was open to the plaintiff to move application for correction of jamabandi for the year 1978-79 Ex.P-5 or the entries recorded in the jamabandi for the year 1983-84. Thus, in these circumstances, it cannot be held that the stray entries were made for the first time in the jamabandi for the year 1983-84. Moreover, the plaintiff has failed to prove his possession over the suit land. Plaintiff has testified that the land towards the western side of the courtyard of the defendants was in the possession of the defendants and in the very next line, the plaintiff has stated that it was correct that the suit pertains to the said land. It is evident from the reading of Ex.P-1 to P-10 that the plaintiff was not in possession of the suit land at the time of filing of the suit. According to Aksh Mushabi placed on record, between the suit land and the road, there are 4 khasra numbers detailed 1644, 1646, 1647 and 1682, however, as per plaintiff, the land was in his possession and abuts the road. 11. The A.S.O. has passed the order Ex. D-6 whereby the entry, which was changed in the name of defendant being encroacher, was ordered to be corrected and they were ordered to be recorded as non- 7 occupancy tenants. Plaintiff ought to have arrayed State of Himachal Pradesh as a party-respondent. Now, as far as the plea of plaintiff is concerned that he had become owner under the provisions of the Himachal Pradesh Village Common Land Vesting and Utilization Act cannot be accepted. There is no provision under the Act of a person becoming owner; rather the land had vested in the State of H.P. on the commencement of the Act free from all encumbrances. 12. Accordingly, in view of the observations and discussions made hereinabove, both the courts below have correctly appreciated the oral as well as documentary evidence led by the plaintiff and as such there is no substantial question of law involved in this Regular Second Appeal. 13. Consequently, there is no merit in the Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs. Pending application(s), if any, also stands disposed of. (Justice Rajiv Sharma), Judge. 8.7. 2011 *awasthi*