IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 359 of 1996 Reserved on 13.3.2008 Date of decision 27.3.2008 Janardan Dass and ors. Appellants Versus Jai Kishan Respondent Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the Appellants: Mr. K.D. Sood with Mr.Rajnish K,Lal, Advocates. For the Respondent: Mr. Karan Singh Advocate Rajiv Sharma, J. A challenge has been laid by way of this regular second appeal to the judgment and decree passed by the Additional District Judge, Sirmaur District at Nahan on 10.7.1996 in Civil Appeal No.24-N/13 of 1995. The brief facts necessary for the adjudication of the second appeal are that the appellants-plaintiffs hereinafter referred to as the plaintiffs for convenience sake, had filed a suit for possession in the court of Sub Judge Ist Class (1), Paonta Sahib on 25.6.1991. The case set up by the plaintiffs was that they were owners of landed property in dispute being sons and widow of deceased Dharam Dass. After the death of Dharam Dass the suit land was inherited by the plaintiffs vide mutation No.412 dated 8.3.1991. The respondent here-in-after referred as the defendant for convenience sake, became the disciple of Dharam Dass and he allowed him to cultivate the suit land in good faith as a licencee. The defendant according to the plaintiffs in connivance with the revenue staff managed to enter his name in the revenue record as non occupancy tenant. The plaintiffs No.1 and 2 at 1 Whether reporter of local papers are allowed to see the judgment ? No. 2 that stage were students and were not in a position to look after the suit land. They have denied that the defendant was inducted as a tenant over the suit and by Dharam Dass or rent was being paid by the defendant to the plaintiffs or their predecessor in the form of 1/4th produce of the suit land. The suit was resisted by the defendant by filing a written statement. The defendant has primarily contended in his written statement that he was inducted as a tenant by Dharam Dass in the year 1969 on the payment of rent in the form of ¼ of produce of the suit land. The trial court on the basis of the pleadings of the parties had framed the following issues:- 1. Whether defendant was a licencee to the suit land, as claimed? OPP 2. If issue No.1 is proved in affirmative, whether plaintiffs are entitled for the possession of the suit land? OPD 3. Issue No.1 is not proved, whether the defendant was inducted as non occupancy tenant? OPD 4. Whether this court has no jurisdiction to try this suit? OPD 5. Whether the suit is time barred? OPD 6. Whether plaintiffs are estopped to file the present suit due to their own acts, deed, conduct and acquiescence etc.? OPD 7. Relief The trial court had given the following findings on the issues framed hereinabove: Issue No.1 Yes Issue No.2 Yes Issue No.3 No Issue No.4 No Issue No.5 No Issue No.6 No Relief Suit stands decreed vide operative portion of the judgment. The trial court decreed the suit preferred by the plaintiffs. The defendant preferred an appeal before the learned Addl. District Judge assailing the judgment of the trial court dated 16.2.1995. 3 The learned Additional District Judge had framed the following points for determination:- 1 Whether the judgment and decree passed by the trial court are liable to be set aside? 2 Final order. The learned Additional District Judge had recorded the following findings on the aforesaid points: Point No.1 Yes Point No.2 Appeal allowed and judgment and decree of the Trial court set aside. The learned Additional District Judge allowed the appeal on 10.7.1996 and the judgment and decree passed by the trial court was set side. The present second appeal has been filed by the plaintiffs against the judgment and decree passed by the learned Additional District Judge, dated 10.7.1996. This second appeal was admitted by this Court on 20.12.1996 on the following substantial questions of law: 1. Whether in view of the fact that the plaintiff was a non agriculturist, the alleged transfer made in his favour was void- abinitio and hit by the provisions of the Himachal Pradesh Tenancy and Land reforms Act and the suit of the plaintiff was liable to be dismissed? 2. Whether on the basis of the stray entry Ext. DW2/A and the contradictory evidence led by the plaintiff and his admissions, it could be inferred that the tenancy was created in favour of the respondent? 3. Whether the provisions of the Himachal Pradesh Abolition of Big Landed Estate and Land Reforms Act and the Himachal Pradesh Tenancy and Land Reforms Act have been misconstrued and it has wrongly been assumed that a tenant could transfer the tenancy rights without the consent of the owner and the said transfer was valid in law? Mr.K.D.Sood, learned counsel appearing on behalf of the appellants- plaintiffs had strenuously argued that the judgment and decree passed by the learned Additional District Judge dated 10.7.1996 is not sustainable in the eyes of law. He further contended that the learned Additional District 4 Judge has gone beyond the pleadings to accept the appeal preferred by the defendant. He elaborated his submission by stating that in the written statement the defendant had stated that he was inducted as a tenant by late Dharam Dass in the year 1969 but in evidence it has come that at the time when the statement of Dharam Dass and defendant was recorded before the Assistant Collector 2nd Grade he was inducted as a tenant 3 years back i.e. in the year 1973 before coming into force of the H.P. Tenancy and Land Reforms Act, 1972. Mr. Karan Singh, learned counsel for the defendant had supported the judgment and decree dated 10.7.1996. I have heard the learned counsel for the parties and have also gone through the record of the case carefully. All the substantial questions of law being interconnected are taken up together. Sh.Janardan Dass had appeared as PW-6. He had deposed that defendant belongs to State of Punjab and was never inducted as tenant over the suit land by his father nor produce of the suit land was being accepted by the plaintiffs as rent. He had denied that any construction was raised by the defendant over the suit land and fruit bearing plants were ever planted. PW-7 Diwan Chand had denied that the defendant used to pay ¼ shares to Dharam Dass. The defendant has stated specifically in his written statement that he was inducted as tenant over the suit land by Dharam Dass in the year 1969. It has come in the evidence that the defendant came to Cement Corporation of India at Rajban in the year 1974. He was posted in Madhya Pradesh since 1965. He belongs to Village Tutkalan District Hoshiarpur, Punjab. He moved an application before the Assistant Collector 2nd Grade Paonta Sahib on 18.12.1976 for his induction as tenant over the suit land. The statements of late Dharam Dass and the defendant were recorded on 18.12.1976. Consequently, the Assistant Collector 2nd Grade, Paonta Sahib passed the order on 18.12.1976. He has ordered that the entries be made reflecting the defendant as non occupancy tenant over the suit land. The 5 defendant has himself admitted in his statement Ex.DW2/A that he was inducted as tenant over the suit land by Dharam Dass in the year 1973. Similarly Dharam Dass has stated in his statement dated 18.12.1976 Ex.DW-2/B that he had inducted defendant as tenant 3 years back. These statements were recorded in the year 1976. It is thus evident that according to the version of the defendant he was inducted as tenant in the year 1973. However, in his written statement he has categorically stated that he was inducted as a tenant in the year 1969. Mr. K.D.Sood had argued that the Assistant Collector 2nd Grade had no jurisdiction to pass the order Ex.DW-2/E dated 18.12.1976. According to him the order could only be passed by the Land Reforms Officer exercising the powers under the provisions of the Himachal Pradesh Tenant and Land Reforms Act. There is considerable force in the submissions made by Mr.K.D.Sood. The Assistant Collector 2nd had no jurisdiction to pass the order dated 18.12.1976 since the order could only be passed by the Assistant Collector Ist Grade as per Rule 29 of the H.P. Tenancy and Land Reforms Rules. This plea was also raised by the appellants-plaintiffs before the learned Additional District Judge, Nahan. But the same has not been appreciated. Consequently, it is held that the findings record by the learned Additional District Judge, are contrary to the evidence produced on record by the parties. He had come to the wrong conclusion that the Assistant Collector 2nd Grade could pass the order dated 18.12.1976. He has only based his finding on surmises that the defendant might be visiting the place even before the year 1974. There is no basis for coming to this conclusion by the learned Addl. District Judge. The defendant was posted for the first time at Cement Corporation of India at Rajban in the year 1974. The entries made in the Jambandi for the year 1978-79 Ex.DW-3/C and Jamabandi for the year 1983-84 Ex.DW-3/D cannot be given any credence since the order passed by the A.C.2nd Grade is not sustainable in the eyes of law. The upshot of the above discussion is that the second appeal is allowed and the judgment and decree dated 10.7.1996 passed by the 6 Additional District Judge, Sirmaur District at Nahan is set aside. The judgment and decree of the trial court dated 16.2.1995 is restored. No order as to costs. March 27, 2008 (g) ( Rajiv Sharma ), J.