IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No.150 of 2001. Judgment reserved on : 31.10.2011. Date of decision : 30.11.2011. Kamala Devi & Ors. ….. Appellants. Versus Savitri Devi & Ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellants : Mr. Ramakant Sharma, Advocate. For the Respondents : Mr. H.K.Bhardwaj, Advocate. Kuldip Singh, Judge . The defendants have assailed judgment, decree dated 07.03.2001 passed by Additional District Judge (I), Kangra at Dharamshala, Camp at Una, in Civil Appeal No. 51/1994, affirming judgment, decree dated 25.03.1994 passed by Sub Judge Ist Class, Court No.II, Una, in Civil Suit No. 78/1987. The original plaintiff and defendant have died, their legal representatives have been brought on record in the judgment. The parties in the judgment are referred as plaintiff and defendant. 2. The brief facts are that Kedar Nath filed a suit against Ram Kishan, defendant, for declaration to the effect that he is owner in possession of land measuring 2 kanals 10 marlas, situated in Village Takhatpur, more specifically described in the plaint. The Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 entries in the name of defendant as non-occupancy tenant are wrong. The consequential relief of permanent prohibitory injunction has been prayed. It has been alleged that land measuring 5 kanals detailed in Para No.1 of the plaint was jointly owned and possessed by the plaintiff along with his brother Surinder Kumar in equal share. In the year 1981, in partition between plaintiff and his brother Surinder, suit land fell to the share of plaintiff, mutation No. 1459 was sanctioned to this effect. 3. It has been alleged that recently plaintiff came to know that an entry has come up in the name of the defendant as non- occupancy tenant in the column of cultivation in respect of suit land. This entry is wrong and illegal. The defendant was never inducted as tenant on the suit land by owners. 4. The further case of the plaintiff is that previous co-owner Surinder, brother of plaintiff, had filed a suit for declaration of land which fell to his share out of 5 kanals joint land against defendant Ram Kishan and in that suit Ram Kishan admitted that he was never inducted as tenant nor he was in possession of the suit land. On the basis of wrong revenue entries, defendant tried to interfere in the possession of the plaintiff over the suit land, hence a suit. 5. The suit was contested by defendant by filing written statement. It has been pleaded that suit land was jointly owned by plaintiff and his brother Surinder. The defendant has been coming in possession of the suit land as tenant at will on payment of rent for the last about 20 years. The defendant was inducted as tenant at will on payment of rent by plaintiff and his brother. After partition, the defendant remained in possession of the suit land. It has been 3 pleaded that he has stopped the cultivation of the suit land which fell to the share of Surinder, the entries in revenue record showing the land which fell into the share of Surinder are wrong after partition, such entries were got corrected through Civil Suit No. 61/1985. It has been pleaded that he was never ejected from the suit land nor he surrendered possession in favour of anyone. It has been pleaded that he never admitted the possession of the plaintiff over the suit land in Civil Suit No. 61/1985. The decision in Civil Suit No. 61/1985 has no bearing on the rights of the defendant. The plaintiff is estopped from filing the suit as plaintiff has been seeing defendant in possession of the suit land as tenant. The defendant denied the claim of the plaintiff. 6. The replication was filed. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is owner in possession of the suit land? OPP. 2. Whether the plaintiff is entitled to the relief of permanent injunction? OPP. 3. Whether the defendant is a non-occupancy tenant in possession of the suit land and has acquired rights of ownership? OPD. 4. Relief. The issues No.1 and 2 were answered in affirmative and issue No.3 in negative, the suit was decreed on 25.03.1994. In appeal, the Additional District Judge on 07.03.2001 affirmed judgment, decree dated 25.03.1994, hence second appeal which has been admitted on following substantial questions of law:- 1. Whether the impugned judgment is the result of complete misreading, misappreciation as well as 4 misinterpretation of Ext. P1 copy of the plaint, Ext. P2 written statement, Ext. P3 affidavit and Ext. P5 decree and Ext. P6 judgment dated 30th May, 1985 in civil suit No. 61 of 1985 titled : Surinder Nath –v- Ram Kishan? 2. Whether in view of contents of para 6 of the written statement, can it be said that the defendant has admitted the jurisdiction of the civil Court to try the case? 7. I have heard learned counsel for the parties and have also gone through the record. The learned counsel for the appellants has submitted that impugned judgment is the result of misreading, mis-interpretation of plaint Ex. P1, written statement Ex. P2, affidavit Ex. P3, judgment Ex. P6, decree Ex. P5 in Civil Suit No. 61 of 1985. The Civil Court has no jurisdiction to try the suit. It has been submitted by learned counsel for the appellants that appeal may be accepted. The learned counsel for the respondents has supported the impugned judgment, decree and has submitted that two Courts below have concurrently decided the lis in favour of respondents. There is no mis-construction, mis-interpretation of record of Civil Suit No. 61/1985. The Civil Court has jurisdiction to try the suit. It has been submitted that no interference is called for in the impugned judgment, decree. 8. The substantial question of law No.1 is taken first. In the written statement filed by Ram Kishan, it has been pleaded that suit land was jointly owned by plaintiff and his brother Surinder Nath and defendant has been coming into possession of suit land at will on payment of rent for the last about 20 years. It has also been pleaded that after the alleged partition the defendant remained in possession 5 of the suit land. Ex. P1 is the copy of plaint in Case No. 61/1985 titled Surinder Nath versus Ram Kishan. The suit was for declaration that plaintiff in that suit is owner in possession of land measuring 2 kanals 10 marlas. In written statement Ex. P2 Ram Kishan in case No. 61/1985 has admitted that the land is in possession of the plaintiff of that suit. In Ex. P3 affidavit dated 04.04.1985 filed by Ram Kishan in case No. 61/1985, he has stated that he had never been the tenant in possession of land of Surinder Nath Sharma nor he had any concern or connection with the said land of Surinder Nath which is in physical cultivating possession of land owner. The entries made in the name of the deponent in the revenue record are coming by mistake and inadvertently. He has no objection to the correction of the revenue entries of the land of Surinder Nath regarding land measuring 2 kanals 10 marlas. 9. Ex. P4 is the copy of statement of Ram Kishan in case No. 61/1985 stating therein that he has no objection if the suit of plaintiff is decreed. Ex. P6 is the copy of judgment dated 30.05.1985 in Civil Suit No. 61/1985 declaring plaintiff as owner in possession of the suit land, entries showing the defendant as a tenant at will over the suit land were declared as null and void. Ex. P5 is the copy of decree in Civil Suit No. 61/1985. DW-3 Karam Chand, son of Ram Kishan, has stated that earlier the land in dispute was in possession of his father for the last 30-35 years and after the death of his father the land is in his possession. The rent was ½ Chakota. The dispute is of 10 marlas of land. In cross-examination, he has stated that Kedar Nath and Surinder Nath were owners of the land in dispute. 10 6 marlas belonged to Kedar Nath. Kedar Nath and Surinder Nath had partitioned the land, but when it took place he does not know. 10. Ex. D3 is the copy of jamabandi for the year 1980-81 wherein Kedar Nath and Surinder Nath in equal shares have been shown owners of Rect. 5/21/1 measuring 4 kanals and Rect. 10/15/2/2 measuring 1 kanal total 5 kanals. Ram Kishan has been shown as non-occupancy tenant on the land. There is reference of mutation No. 1459 of family partition in Ex. D3. Ex. D4 is the copy of jamabandi for 1985-86 in which Kedar Nath has been shown owner of Rect.5/21/1/2 measuring 2 kanals and Rect. 10/15/2/2/1 measuring 10 kanals. Ram Kishan has been shown as non-occupancy tenant on the land. Copy of plaint Ex. P1 indicates that Khasra No. Rect. 5/21/1/1 measuring 2 kanalas and Khasra No. Rect. 10/15/2/2/2 measuring 10 kanals vide jamabandi 1980-81 was involved in case No. 61/1985. In the written statement Ex. P2 and affidavit Ex. P3 Ram Kishan has stated that he had never been the tenant in possession of the said land under Surinder Nath Sharma. 11. In the written statement of the present suit, Ram Kishan has pleaded that suit land was jointly owned by plaintiff and his real brother Surinder Nath and defendant has been coming in possession as tenant at will on payment of rent under them for the last 20 years. This stand of Ram Kishan is in contradiction to his stand taken by him in written statement Ex. P2 and affidavit Ex. P3. The tenancy is a creation of contract. It has not been pleaded in the written statement on what terms Ram Kishan was inducted as tenant on the suit land. In jamabandi for 1985-86 Ex. D4 the rent has been shown 1/4th produce. 7 12. DW-3 Karam Chand, son of Shri Ram Kishan, on 21.01.1994 has stated that his father came in possession of the disputed land 30-35 years ago and he used to pay half produce as rent. According to DW-3, Ram Kishan came in possession of the suit land in 1959-64. Ram Kishan in his written statement dated 24.08.1987 has stated that he was inducted as tenant about 20 years ago i.e. around 1967. DW-3 has stated that rent was half of the produce, in Ex. D4 jamabandi rent has been shown 1/4th of the produce. In written statement, rate of rent has not been pleaded. Thus, induction of Ram Kishan as tenant on the suit land is not matching from any angle, more particularly, when in written statement Ex. P2 and affidavit Ex. P3, Ram Kishan has already denied his induction as tenant by Surinder Nath brother of Kedar Nath which is in contradiction to the pleaded case in the written statement of the present suit that he was inducted as tenant on suit land by both Kedar Nath and Surinder Nath. Thus, it cannot be said that the two Courts below have mis-construed and mis-interpreted Ex. P1, Ex. P2, Ex. P3, Ex. P5 and Ex. P6 in returning the finding against the appellants and in favour of the respondents. The two Courts below have rightly appreciated the material on record in decreeing the suit of the respondents. The substantial question of law No. 1 is decided against the appellants. 13. In Para No. 6 of the plaint, it has been pleaded that the Civil Court has jurisdiction to try the suit. In corresponding Para No.6 of the written statement, Para No.6 of the plaint has been denied. It has been pleaded that plaintiff has no cause of action. It is true that jurisdiction of the Court cannot be conferred with the consent of the 8 parties where the Court lacks inherent jurisdiction. In the plaint, the plaintiff has projected the case that defendant was never inducted as a tenant by him and his brother Surinder Nath nor he was admitted to be a tenant on the suit land. There is nothing on record to show that mutation of proprietorship was attested under Section 104 of the H.P. Tenancy and Land Reforms in favour of Ram Kishan. 14. The plaintiff has filed this suit by taking the plea that he is owner in possession of the suit land and the defendant is interfering in his possession. It has not been shown that suit of this nature how is not cognizable by Civil Court. The defendant did not raise issue of jurisdiction in the trial Court. In the grounds of appeal in the Court below also, no specific ground has been taken that issue of jurisdiction has not been framed even though such issue was pressed before the trial Court. Now in second appeal, it is too late for the appellants to raise the issue of jurisdiction that Civil Court has no jurisdiction to try the suit. On the basis of pleadings of the parties and other material on record, the suit is triable by the Civil Court. The substantial question of law No.2 is decided against the appellants. 15. In view of above discussion, there is no merit in the appeal which is dismissed with no order as to costs. November 30, 2011. (Kuldip Singh), ( krt) Judge.