IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 44 of 2001 Reserved on: 09.05.2011 Date of decision: 26.05.2011 Desh Raj …. Appellant Versus Jagan Nath and others … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. R.P. Singh, Advocate. For the respondents: Pt. Om Prakash, Advocate, for respondents No. 1 to 3. V.K. Ahuja, J. : This is a Regular Second Appeal under Section 100 C.P.C. filed by the appellant/plaintiff against the judgment and decree of the Court of learned Additional District Judge, Kangra at Dharamshala, (Camp at Una), dated 8.9.2000, vide which he affirmed the judgment and decree dated 23.9.1993 passed by the learned Sub Judge Ist Class, Court No. II, Una, dismissing the suit of the appellants/plaintiffs for declaration and permanent injunction. 2. Briefly stated, the facts of the case are that a civil suit for declaration and injunction was filed by the predecessors-in-interest of the appellant Labhu Ram and Dhani Ram sons of Syama against the respondents hereinafter referred to as the defendants on the allegations 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 that plaintiff No. 1 Dhani Ram is the owner of the land measuring 37 Kanals 12 Marlas as detailed in the plaint and plaintiff No. 2 Labhu Ram, Ram, now deceased, is owner in possession of land measuring 36 Kanals 5 Marlas as detailed in the plaint and the revenue entries in the revenue record in favour of defendants No. 1 to 3 namely, Jagan Nath, Om Parkash and Jagat Ram, sons of Banta Ram as tenants, are wrong and illegal and order of Director (Consolidation) dated 18.4.1979 passed on the basis of those wrong entries is also wrong and illegal. As a consequential relief, the plaintiffs prayed for the relief of permanent injunction restraining the respondents from interfering in their possession over the suit land. The plaintiffs also alleged that the plaintiffs and defendant No. 4 Banta were owners of the land and during consolidation, land was partitioned and the suit land was allotted to the plaintiffs. The plaintiffs also alleged that defendants No. 1 to 3 were never inducted as tenants over the suit land and the entries showing them as tenants were wrong. It was alleged that defendant No. 4 filed a civil suit in which he admitted the possession of the plaintiffs over the suit land. The order passed by the Director (Consolidation) was also challenged being wrong, which was passed on the basis of wrong entries in the revenue record. 3. Defendants No. 1 to 3 contested the suit by taking various preliminary objections. They also pleaded that they have been coming in possession of the suit land as tenants under the plaintiffs for the last so many years and have become owners on coming into force of the H.P. Tenancy and Land Reforms Act. It was also pleaded that the possession of defendants No. 1 to 3 was verified and established during the consolidation proceedings by the C.O. The plaintiffs went in appeal 3 before the S.O., which was also dismissed. The plaintiffs also filed revision petition against the order of the S.O., which was dismissed by the Director (Consolidation). The plaintiffs also filed a civil writ petition against the order of the Director (Consolidation), which was also dismissed by the High Court on 8.7.1985. Defendants No. 1 to 3 further pleaded that the plaintiffs had purchased the suit land from defendant No. 4 and a suit for pre-emption was filed by defendants No. 1 to 3 which was later on compromised and the plaintiffs inducted defendants No. 1 to 3 as tenants over the suit land on payment of ` 50/- as ‘’Chakota’’ and the defendants have been coming in possession as such. 4. On the pleadings of the parties, as many as seven issues were framed and the material issues are Issues No. 1 and 5, which are as under:- “1. Whether the plaintiffs are owners in possession of the suit land, as alleged? OPP 5. Whether the suit is not within limitation? OPD 1 to 3” 5. The learned trial Court tried the suit and vide its judgment and decree decided issue No. 1 as against the plaintiffs and in favour of the defendants and Issue No. 5 was also decided against the defendants as not pressed. 6. An appeal was preferred and the learned Additional District Judge vide his judgment and decree affirmed the findings of learned trial Court on all the issues and under Issue No. 5 it was also held that the suit was not within time. Consequently, the appeal field by the appellants was dismissed. 4 7. I have heard the learned counsel for the parties and have gone through the record of theca see. 8. The submissions made by the learned counsel for the appellants were that the courts below had not appreciated the pleadings of the parties and the evidence in its right perspective and, therefore, those findings are liable to be set aside. It was also submitted that the compromise deed since pleaded by the defendants was not produced by the defendants. They also took up the plea that pre-emption suit was filed on behalf of the minors through their mother and no tenants could be inducted and the rights of tenancy were also not rightly conferred. It was also pleaded that pre-emption suit was collusive based on fraud and as such, the findings to the contrary are liable to be reversed. 9. On the other hand, learned counsel for the respondents had supported the impugned judgments for the reasons recorded therein. 10. A perusal of the record shows that the appeal in question was admitted by this Court on the following substantial question of law only:- “Whether tenancy can be devolved upon the sons of a co- sharer i.e. nephews, more particularly when they were minors on the date of alleged compromise between the parties?” 11. On appraisal of the judgments passed by both the Courts below, it is clear that the change of entries in the revenue record was made for the first time in the copies of Khasra Girdawwari Ext. D-11 to D-13 showing defendants No. 1 to 3 as tenants of the suit land, which entries are for the period Kharif 1966 and Rabi 1967 onwards. 5 Therefore, the plaintiffs are challenging these entries which were appearing in the revenue record for the last number of years. There are findings of fact recorded by the learned trial Court affirmed by the learned Appellate Court that the entries in favour of defendants No. 1 to 3 as tenants were made pursuant to the decree passed by the Civil Court and, therefore, these cannot be said to be wrong. The plaintiffs had challenged the order as well as the entries as incorrect before the S.O. Once the possession has been verified and has been established during the consolidation proceedings by the C.O., the appeal was dismissed by the S.O. and the revision petition filed, was also dismissed by the Director (Consolidation) exercising the powers of the State Government. It is also clear that the plaintiffs also filed a civil writ petition challenging the order passed by the Director (Consolidation) before this Court. It was also decided in favour of the defendants. It is clear from a perusal of the impugned order passed by the Director (Consolidation) that he had made a reference to the fact that the land in question was purchased by Syama father of Banta and in view of the compromise effected in the suit filed by sons of Banta and in accordance with the compromise, Banta’s sons Jagan Nath, Om Parkash and Jagat Ram were recognized as non-occupancy tenants on payment of sum of Rs. 50/- per annum as rent. Thus, it was held by the Director (Consolidation) that the entry relating to non-occupancy of Jagan Nath etc. sons of Banta were made and the plaintiffs had the knowledge and accordingly, the order of C.O. as well as S.O. were up-held. 12. A copy of the judgment passed by this Court Ext. D-1 dated 8.7.1985 shows that a writ petition was filed by the petitioners Labhu Ram etc. for quashing of the order dated 18.4.1979 passed by the 6 Director (Consolidation). It was also observed therein that respondents No. 3 to 5 were shown as tenants of this land in the appropriate column of the revenue record and this plea was also taken therein that a co- sharer could not be a tenant of the other co-sharer and there were observations that the C.O. has observed that respondents No. 3 to 5 continued to be shown in possession in the revenue record in the capacity of tenants. Therefore, the order passed by the Director (Consolidation) was upheld. Once order passed by the Director (Consolidation) in which the challenge was made to the entries showing defendants No. 1 to 3 as tenants, and there are findings as against the plaintiffs and the plaintiffs who had challenged the order passed by the Director (Consolidation), which was passed on 18.4.1979. The civil writ petition was decided by this Court on 8.7.1985 and the present suit was filed by the plaintiffs on 21.3.1987. Once they were challenging the order passed by the C.O. dated 18.4.1979, the suit should have been filed within one year from the date of order and accordingly, the learned Appellate Court held that the suit was not within time and these findings also deserve to be affirmed. 13. Apart from the above, it is clear that there were no facts alleged by the plaintiffs in regard to the previous suit in which the compromise was effected or the order passed by this Court in writ petition, which clearly shows that the plaintiffs have not come up with clean hands. He did not allege or prove the date as to when the plaintiffs were born or that they were minors at the time of compromise and once they had failed to substantiate these points, the same cannot be considered in the second appeal filed by the appellants. No case is made out for reappraisal of the evidence. The judgments of the 7 Courts below show that they have properly discussed the evidence in coming to a right conclusion and those findings do not call for an interference by this Court on any ground. 14. In view of the above discussion, I hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly, so also the pending miscellaneous application(s), if any. Parties are however left to bear their own costs. ( V.K. Ahuja ), May 26, 2011 Judge (BSS) 8 9