HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 431 of 1999 & RSA No. 591 of 2001 Reserved on: 6.9.2010 Decided on: 21.10.2010 Savitri Devi and others ……Appellants. Versus Jamni (dead) through LRs Hari Ram and others ………Respondents Coram The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellants: Mr.K.D. Sood, Advocate. For respondents 1(a) to 1(c): Mr.M.L. Sharma, Advocate. V.K. Ahuja, J.: These are the two regular second appeals filed by the appellants under Section 100 of the CPC against the common judgment and decree, dated 7.8.1999, passed by the learned Additional District Judge, Solan, H.P., vide which, the judgments and decrees passed by the learned Senior Sub Judge, Solan, dated 30.3.1998, were affirmed, whereby suit bearing No.292/1 of 1983 filed by Hari Dass was dismissed and civil suit No.21/1 of 1984 filed by Jamni was decreed and the plaintiff was held entitled for the relief of possession and injunction. ______________________________ Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - 2. Briefly stated, the facts of civil suit No.292/1 of 1983, titled Hari Dass versus Jamni, are that a suit for permanent injunction was filed by the plaintiff Hari Dass, hereinafter referred to as the plaintiff, against the original defendant Jamni. It was alleged by the plaintiff that he is in possession of the land comprised in Khasra Nos.322, 324, 478 and 450, situated at Village Gharssi Brahamana. It was alleged that the possession of the plaintiff over the suit land is peaceful, uninterrupted and is in the capacity of non-occupancy tenant. The status of the defendant was alleged to be as a landlord being owner of the land in question. It was further alleged that the defendant is threatening to oust the plaintiff from the suit land, hence the suit for permanent injunction filed by the plaintiff. 3. Defendant Jamni took up the plea that she had also filed a suit for injunction against the present plaintiff regarding the same property. She denied that the plaintiff was in possession of the suit property as non- occupancy tenant. It was pleaded that the plaintiff was never inducted as a tenant by the defendant or her predecessor-in-interest and wrong entries were got effected unauthorizedly by the plaintiff for which a civil suit had been filed. 4. On the pleadings of the parties, the following issues were framed by the learned trial Court: 1. Whether the plaintiff is in possession of suit land as tenant? O.P.P. - 3 - 2. Whether the plaintiff is entitled to injunction as claimed? O.P.P. 3. Whether the suit is liable to be stayed in view of the preliminary objection? OPD 4. Relief. 5. Parties led their evidence and the learned trial Court vide its impugned judgment dismissed the suit of the plaintiff Hari Dass, which findings of the learned trial Court were affirmed by the learned Appellate Court. 6. The facts of civil suit No.21-1 of 1984, titled Jamni versus Hari Dass, in brief, are that the plaintiff Jamni filed a suit for declaration that she is in possession of the suit land as owner comprised in Khasra Nos.322, 324, 478 and 450, measuring 18 bigha and biswas. The relief of permanent injunction was also claimed as against defendant Hari Dass restraining him from interfering in the possession of the plaintiff. It was alleged that one Darshno was the owner in possession of the suit land and on her death, the property devolved upon the plaintiff and since then the plaintiff is in actual physical possession of the same. It was further alleged that the defendant started interfering in the possession of the plaintiff in September/October, 1983 and it was learnt by the plaintiff that the defendant has managed the Girdarvaris in his name as non-occupancy tenant under the plaintiff. The said entry was wrong and unauthorized, hence the suit for declaration and injunction filed by the plaintiff Jamni. - 4 - 7. Defendant Hari Dass denied that the plaintiff had succeeded to the estate of Smt.Darshno or she ever occupied the suit property in any capacity. It was alleged that the land was owned by one Sudama, husband of Darshno, who had died more than 40 years ago and after the death of Sudama, it was being cultivated Smt.Darshano, who gave it to the defendant on tenancy on payment of 1/4th produce of the land as rent and since then the defendant was in possession of the suit property. It was also pleaded that the defendant moved an application for correction of entry before the Assistant Consolidation Officer, who passed an order recording the name of the defendant as tenant after notice to the plaintiff. 8. On such pleadings of the parties the following issues were framed: 1. Whether the suit is not maintainable as plaintiff is out of possession? OPD 2. Whether the plaint lacks material particulars and is liable to be rejected? OPD 3. Whether the plaint has not been verified in accordance with law, if so its effect? OPD 4. Whether there is no cause of action? OPD 5. Whether the suit is not valued properly for the purposes of court-fee and jurisdiction? OPD 6. Whether this court has no jurisdiction in the matter? OPD 7. Whether plaintiff is estopped from filing the suit in view of his acts and deeds and conducts? OPD 8. Whether the suit is not within limitation? OPD 9. Whether the plaintiff is owner in possession of the suit land? OPP - 5 - 10. Whether revenue entries showing the defendant as non- occupancy tenant are wrong as alleged? OPP 11. Whether the plaintiff is entitled to the relief of injunction as claimed? OPP 12. Relief. 9. Parties led their evidence and the learned trial Court vide its impugned judgment, decreed the suit of the plaintiff Jamni for possession and also granted the relief of permanent injunction as against defendant Hari Dass. 10. On appeal, the findings of the learned trial Court in regard to both the suits were affirmed by the learned First Appellate Court. 11. I have heard the learned counsel for the parties and have gone through the record of the case. 12. The submissions made by the learned counsel for the appellants were that the respondents never challenged the order of the Consolidation Officer passed in their favour and since 1977 they have been held to be in possession. It was also submitted that the oral evidence led by the appellants clearly established that they were in possession as tenants and the findings to the contrary are liable to be set aside. It was also submitted that it was for the respondents to prove that the entries were incorrect and as such the suit of the appellant Hari Ram was wrongly dismissed by the learned trial Court and that of the respondents was wrongly decreed. - 6 - 13. On the other hand, the learned counsel for respondents had supported the impugned judgment passed by both the courts below for the reasons recorded therein. 14. The appeal was admitted on the substantial questions of law as to whether the suit filed by Jamni Devi, without challenging the order, dated 3.10.1977, was maintainable and whether presumption of correctness attached to revenue record under the provisions of H.P. Land Revenue Act have been rebutted by Jamni to be able to obtain a decree for possession. The next question was as to whether the bar envisaged under Section 57 of the H.P. Consolidation of Holdings Act was there and the suit was hit by the bar under the provisions of the Act. 15. The essential question which arises out of the substantial questions framed is as to whether the presumption of correctness attached to the earlier copy of jamabandi entries in favour of predecessor-in-interest of Jamni, namely, Darshno stands rebutted by the subsequent entries in favour of Hari Dass, plaintiff. This presumption will arise in favour of the later entries if it was proved on record that the later entries were incorporated in the revenue record on the basis of a valid order passed by a competent Revenue Officer. A perusal of the copy of the Jamabandi (Missal Haquiat) Ext.DA for the year 1976-77 shows that the land in suit was entered in the ownership and possession of Smt.Darshano, the predecessor- in-interest of the Jamni. According to the remarks column, the mutation in regard to the property of Smt.Darshano had - 7 - also been attested in favour of Smt.Jamni. Thereafter, there is a change in the jamabandi for the year 1981-82 Ext.DB, when in the ownership column the name of Smt.Jamni was entered, while in the possession column, the name of Hari Dass, plaintiff, has been recorded as Gair Maroosi, on payment of Galla Batai. It was for the plaintiff Hari Dass to show that the change in the jamabandi for the year 1981- 82, as shown in Ext.DB, was on the basis of a legal order passed by a Revenue Officer. In the plaint filed by Hari Dass, he did not allege as to when he was inducted as a tenant, since when he is in possession and he simply filed the suit that since the defendant is threatening to dispossess him, therefore, cause of action had arisen in his favour. His pleadings were not specific as to when he was inducted as a tenant, by whom he was inducted and on what terms and as to whether the rent was being paid in cash or kind. However, in the written statement filed by him to the suit filed by Smt.Jamni, he alleged, for the first time, that he was in possession since 1967 and he was inducted as a tenant by Smt.Darshano, the previous owner of the land, on payment of Galla Batai. The plaintiff Hari Dass has also placed reliance upon the order passed by the Assistant Consolidation Officer Ext.PA, dated 3.10.1977, on the basis of which he claimed that the subsequent jamabandi entry was changed in his favour. 16. To substantiate the above allegations, as made by him in the plaint and written statement, he stepped into the witness box as PW-1 in the suit filed by him and - 8 - claimed that he was given the land by Smt.Darshano Devi on Galla Batai. He also stated that he had been paying 1/4th as Galla Batai to her brother Deep Ram and had also given the land revenue to Pradhan Ram Dass. He also stated that he used to pay Galla Batai every six months. He admitted that Smt.Darshano had died in the year 1977 and he filed an application for correction of Girdavari before the Assistant Consolidation Officer. The said order relied upon by him is Ext.PA. A perusal of the same shows that the said application was filed before the Assistant Consolidation Officer on 3.7.1977 and was decided on 3.10.1977. The application had been filed against Jamni and it is clear that the said application had been filed by Hari Dass after the death of Smt.Darshano Devi and no steps were taken by him for correction of entry, though he has claimed that he was in possession for the last 10 years. The said landlord was already dead and he filed the application arraying her successor-in-interest claiming that he was inducted as a tenant by the previous owner. An attested copy of the statement made by Smt.Jamni has also been tendered in evidence as Ext.PB, which is being looked into since there was no objection about it. It has also come in the order passed by the Assistant Consolidation Officer that it had been admitted by Jamni in her statement that she was not aware as to in what capacity the possession of Hari Dass was there on the land. This clearly showed that she had never admitted that the possession of Hari Dass was that of a tenant or that he was inducted as a tenant by the - 9 - previous owner. No provision of law had been cited in this order under which the application for correction was filed by Hari Dass. 17. My attention has been drawn to the provisions of Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 and there is no provision for correction of such entry in Khasra Girdavari by the Assistant Consolidation Officer. A reference has been made under Section 53 for appointment of an Arbitrator but there is no provision for correction of the entry in Khasra Girdavari nor any provision was mentioned under which the application was entertained by the Assistant Consolidation Officer or he passed the order. During the course of arguments, the learned counsel for the appellant Hari Dass was not able to satisfy as to under which provision the order was passed. There is substance in the plea raised by the learned counsel for Jamni that once the order passed was inherently without jurisdiction, it could be ignored and it need not be challenged and the jurisdiction of the civil court was not barred under the provisions of this Act or under any other Act to entertain the suit for declaration filed by Smt.Jamni Devi. It was for Hari Dass to satisfy that this order was passed within the powers vested in the Assistant Consolidation Officer in which he had failed and, therefore, presumption of correctness attached to the earlier copy of jamabandi entry does not stand rebutted in favour of Hari Dass. - 10 - 18. The learned trial Court has rightly referred to the statements of the witnesses and had clearly observed that though the plaintiff Hari Dass had claimed that he was inducted as a tenant on payment of 1/4th of produce but PW-2 Deep Ram had stated that the rent was being paid in the form of cash, sometimes Rs.100/- and sometimes Rs.60/-, which was never the case of Hari Dass. The statement of PW- 3 Dhani Ram was also not relied upon since no rent receipts have been produced to prove that the rent was paid, at any time, in cash or kind. 19. Learned counsel for the respondent Jamni had relied upon the decision in Tikka Ram and another versus Kartara (deceased) through LRs and others, (2008) 12 Supreme Court cases 634, wherein the plaintiffs had claimed their possession as tenants for the last 12-15 years, but, admittedly, no Pattanama (lease deed) had been produced. There is no explanation at all as to why no pattanama has ever been got executed. No receipt of payment of batai for any year was produced though the claim was that they were in possession of the land for more than 12-15 years. On the facts of the case, it was observed that in the absence of execution of proper pattanama and payment of rent, their claim that they were the tenants over the suit land cannot be accepted. 20. In the present case, there is substance in the plea raised by the learned counsel for the respondent Jamni that once the order was passed without jurisdiction, the Court can ignore it and there is nothing on the record - 11 - to substantiate that the order passed by the Assistant Consolidation Officer was within the powers vested in him and as such the order was nullity and it can be ignored. Moreover, the plaintiff Hari Dass himself has not stated as to when Smt.Jamni inducted him as a tenant but his statement is that he was inducted as a tenant by the Consolidation Authorities. This statement was sought to be interpreted by the learned counsel for the appellant Hari Dass as the order of correction was passed by the Assistant Consolidation Officer, but it is clear that the statement was that he was inducted as a tenant by the Consolidation Authorities. There is no provision for the Assistant Consolidation Officer to make the correction. In so far as the bar created to the jurisdiction is concerned under Section 57 of the Himachal Pradesh Consolidation Act, it is to the orders passed arising out of the consolidation proceedings which are for re-partition and partition but not for correction of the revenue entries. Therefore, the bar under Section 57 of the Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 does not apply to the civil suit and the suit was rightly tried by the learned trial Court. 21. In view of the above discussion, it is clear that the findings of fact have been recorded by both the courts below that Smt.Jamni was in possession as owner and there is no material to justify the subsequent change in the revenue record and these findings of fact recorded by both the courts below do not call for an interference by - 12 - this Court. Therefore, I accordingly hold that there is no merit in the appeals filed by the appellants and as such both the appeals are dismissed. However, the parties are left to bear their own costs. Oct. 21, 2010. (V.K. Ahuja), (TILAK) Judge.