IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 527/2010 Reserved on: 25.3.2011 Decided on:20.4.2011 _____________________________________________ Chain Singh and others. …Appellants. Versus Kood Singh and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the appellants : Mr. Dalip K. Sharma, Advocate. For the Respondents: Mr. Vivek Singh Thakur, Advocate for respondents No. 1,2 and 4. None for respondent No.3. _____________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 28.5.2010 rendered by the learned Additional District Judge, Fast Track Court, Kangra at Dharamshala in Civil Appeal No.41-I/XIII/08. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the respondents-plaintiffs (hereinafter referred to as ‘plaintiffs’ for convenience sake) filed a suit seeking declaration that they are owners in 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 possession over the suit land comprising Khata No. 4 min, Khatauni No. 12, Khasra No. 15 and 16, plots-2 measuring 0- 08-13 H.M. situated in Mohal Naluwan, Mauza Malahri, Tehsil Indora, District Kangra according to Jamabandi for the year 1995-96 and they are entitled to remain in possession as owners in future also and the revenue entries showing the appellants-defendants (hereinafter referred to as ‘defendants’ for convenience sake) as ‘non-occupancy tenant’ were against the law and facts and also against the principle of natural justice and the same were not binding on the plaintiffs with consequential relief of permanent prohibitory injunction restraining the defendants from interfering in the suit land. 2. Defendants contested the suit. According to them, the revenue entries were correct and long standing and were never assailed by the plaintiffs. It is contended that the ‘Gharat’ was used by the defendants prior to 1947 on payment of rent of Rs. 6/- per year and 2 kgs. Atta (flour) per month and in the year 1965-66, the defendants started paying rent @ Rs. 4/- per year and 5 Sair Atta (flour) per month. 3. The learned trial court framed issues on 22.9.2004. The trial court decreed the suit on 12.2.2008. Plaintiffs were held entitled to the effect that they were owners of the suit land detailed in the plaint and the revenue 3 entries showing the defendants as ‘non-occupancy tenants’ were illegal and were liable to be corrected and the plaintiffs were held entitled to possession of the suit land against the defendants with consequential relief of permanent prohibitory injunction restraining them from proclaiming to have any right on the basis of revenue entries or cutting and removing the trees over the suit land. Defendants preferred an appeal before the learned Additional District Judge, Fast Track Court, Kangra at Dharamshala. The same was dismissed on 28.5.2010. Hence, the present Regular Second Appeal. 4. Notices were issued to the defendants on 8.12.2010. Mr. Vivek Singh Thakur has put in appearance on behalf of respondents No.1, 2 and 4. 5. Mr. Dalip K. Sharma has strenuously argued that both the courts below have not considered the well settled principles of law. According to him, both the courts below have misread and mis-appreciated the oral as well as documentary evidence placed on record. According to him, defendants have proved that they were in possession of the suit land as ‘non-occupancy tenants’ and were running the Gharat. 6. Mr. Vivek Singh Thakur has supported the judgments and decrees passed by both the courts below. 4 7. I have heard the learned counsel for the parties and have perused the pleadings carefully. 8. Plaintiff No.2, Kishan Singh, has appeared as PW-2. According to him, Gharat was constructed by his ancestors and the plaintiffs were owners of the entire suit land. According to him, neither the defendants were inducted as tenants nor they were put in possession of the suit land on payment of rent. 9 Defendant No.1 Chain Singh has tendered his evidence by way of affidavit Ex.DW-1/A. He has sworn that the Gharat was constructed by their ancestors and they have been running the same prior to 1947 on payment of rent. In his cross-examination, he has admitted that the suit land was owned by the plaintiffs. He has denied that he was related to Kharku and Kundu and stated that they were his partners. 10. DW-2 has also tendered his evidence by way of affidavit Ex.DW-2/A. According to him, defendants and their fore-fathers had been running the Gharat for the last 60 years. This is the oral evidence led by the parties. 11. Plaintiffs have placed on record Jamabandis of the suit land Ex.P-1 for the year 1995-96, Ex. P-2 for the year 1982-83 and Ex.P-3 for the year 1990-91. According to these jamabandis, plaintiffs were owners of the suit land. The suit 5 land has been shown as ‘Gair-Mumkin-Kuhal’ and ‘Gair- Mumkin-Gharat’. Thus, the suit land is not agriculture land. 12. Defendants have produced on record copy of jamabandis of the suit property Ex.D-4 for the year 1975-76, Ex.D-5 for the year 1970-71, Ex.D-6 for the year 1965-66, Ex.D-7 for the year 1952-53, Ex. D-8 for the year 1956-57, Ex.D-9 for the year 1960-61, Ex.D-10 for the year 1920-21, Ex.D-11 for the year 1932-33, Ex.D-12 for the year 1936-37, Ex.D-13 for the year 1940-41 and Ex.D-14 for the year 1944- 45. Names of the defendants in the column of possession have been reflected for the first time in the copy of jamabandi Ex.D-6 for the year 1965-66. Defendants have not explained when they were inducted as tenants and how the entry came in their favour for the first time in the jamabandi for the year 1965-66. There is a settled procedure under which the revenue entries can be changed. These are required to be changed only after the orders are passed by the competent revenue officer. In the oldest jamabandi for the year 1920- 21, possession of Khadku Ram and Kundhu Ram has been shown in the column of possession. Defendant Chain Singh has stated in his cross-examination that Khadku Ram and Kundhu Ram were not related to him. Defendants have also not produced any receipt as to the payment of the rent to the 6 owners to establish the tenancy even under the Transfer of Property Act. The tenancy is a bilateral contract between the landlord and tenant. Defendants have not deposed to whom they were paying the rent. Statement of DW-2 Duni Chand could not be relied upon since he belonged to another village. Defendants have not examined any person from the same village. They have admitted the plaintiffs to be the owner of the suit property, including Gharat. Both the courts below have correctly appreciated the oral as well as documentary evidence and as such there is no need to interfere with the judgments and decrees passed by the courts below. 13. Accordingly, in view of the observations made hereinabove, there is no substantial question of law involved in the Regular Second Appeal and the same is dismissed. . There shall, however, be no order as to costs. (Justice Rajiv Sharma), Judge. 20.4.2011 *awasthi*