HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 104 of 1997 Decided on: 8.7.2010 State of H.P. ………Appellant. Versus Sukru ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.J.S. Guleria, Assistant Advocate General. For the respondent: Mr.Rajneesh K.Lal, Advocate. V.K. Ahuja, J.(Oral): This is a regular second appeal filed by the appellant under Section 100 of the CPC against the judgment and decree, dated 19.1.1996, passed by the learned District Judge, Kangra at Dharamshala, vide which the appeal filed by the appellant against the judgment and decree dated 17.5.1995 of the learned Sub Judge Ist Class, Dharamshala, was dismissed. 2. Briefly stated the facts of the case are that the respondent as plaintiff filed a suit for declaration and permanent injunction that he was the tenant of the land comprised in Khasra Nos.324 and 325, as detailed in the plaint, and had been conferred proprietory rights under the H.P. Tenancy and Land Reforms Act. He alleged that he was inducted as a tenant in the ______________________________ Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - years 1970 and 1972 and he broke the land and made it fit for cultivation. The Revenue Officer sanctioned mutation No.41 of extinguishment of Patta in the absence of the plaintiff and against law and facts for which the Revenue Officer had no jurisdiction. The plaintiff alleged that he was in possession and has become owner and hence the suit for declaration and permanent injunction filed by the plaintiff. 3. The defendant/State denied the allegations and took up preliminary objections in regard to the maintainability, jurisdiction, cause of action etc. On merits, it was pleaded that the plaintiff was not a tenant of the suit land and as such no proprietory rights under Section 104 of the H.P. Tenancy and Land Reforms Act could be conferred upon him. The plaintiff was allegedly a Pattadar in the year 1970-72 and was not inducted as a tenant and as such provisions of H.P. Tenancy and Land Reforms Act are not applicable to the case. 4. On the pleadings of the parties, the following issues were settled by the learned trial Court: “1. Whether the plaintiff was a tenant and has been conferred the proprietory rights over the land in dispute, as alleged? OPP 2. If issue No.1 is not proved where her the plaintiff is in lawful possession of the land in dispute as pattadar and his patta has not been terminated? OPP 3. Whether the plaintiff is entitled to remain in possession of the land in dispute till evicted by process of law? OPP 4. Whether defendants 2 and 3 are interfering and the revenue officials of defendant No.1 are threatening to dispossess the plaintiff by use of force, as alleged? OPP 5. Whether this court has no jurisdiction to try the present suit? OPD-1 - 3 - 6. Whether the suit is not maintainable in the present form? OPD-1 7. Whether the plaintiff is debarred from filing the suit by his own act and conduct? OPD-1 8. Whether the plaintiff has got no cause of action and locus standi to file the present suit? OPD 9. Whether the suit is not properly valued for the purposes of court fee and jurisdiction, if so, what is the correct valuation? OPD-2 10. Relief.” 5. Parties led their evidence and the learned trial Court vide its impugned judgment decreed the suit of the plaintiff for declaration and permanent injunction and the defendants were restrained from interfering in the possession of the plaintiff till he evicted under due process of law. However, his claim that he has acquired proprietory rights under the H.P. Tenancy and Land Reforms Act was dismissed. 6. On appeal, the findings were upheld by the learned First Appellate Court and the appeal was dismissed. However, it was ordered that the possession of the respondent shall not be disturbed except by due process of law. 7. I have heard the learned counsel for the parties and have gone through the record of the case. 8. The main plea raised by the learned Assistant Advocate General for the appellant was that the learned First Appellate Court had clubbed all the issues and points together and given its findings on the question as to whether the findings are sustainable in the eye of law. It was also submitted that there was no discussion of - 4 - the oral and documentary evidence led by the parties and as such the learned first Appellate Court has failed to appreciate the evidence and had not discussed the evidence. Therefore, the case deserves to be remanded to the learned First Appellate Court for rehearing the parties and to give its findings afresh. 9. On appraisal of the record of the case, it is clear that the main question was as to whether the plaintiff was a tenant under the State of H.P. and was entitled to the conferment of proprietory rights. Therefore, a reference was required to be made to the documentary evidence placed on record to show as to when the plaintiff became a tenant of the suit land and as to whether he became tenant under the State of H.P. or the Panchayat and thereafter, the question had to be considered whether he could be conferred proprietory rights under Section 104 of the H.P. Tenancy and Land Reforms Act or not. However, all these questions were not answered by the learned First Appellate Court, who framed one question for consideration as to whether the findings of the learned trial Court are legal and correct, if so, its effect. By citing a judgment and without referring to the documents or oral evidence on record and while placing reliance upon a decision of the Hon’ble Supreme Court in Harish Chander and others versus Ghisa Ram and others, AIR 1981 S.C. 695, it observed that the proposition of landlord and tenant has been discussed elaborately. The possession cannot be automatically terminated nor any proceeding under Section - 5 - 163 of the H.P. Land Revenue Act can be initiated. The learned First appellate Court was required, as a First Appellate Court, to discuss the oral as well as documentary evidence placed on record by both the parties and the findings under each issue had to be discussed, which were raised in the grounds of appeal and thereafter it should have been concluded as to whether there is any merit in the appeal filed by the appellant or not. A reference can be made to the decision of this Court in Om Parkash and others versus State of Himachal Pradesh and others, 2000(2) Shim.L.C. 240, wherein all the issues were clubbed together and accordingly the findings were given by the learned trial Court i.e. the court of the learned District Judge, Kangra. The said decision shows that all the issues have to be separately discussed and thereafter the findings have to be given. Though the aforesaid case does not strictly apply to the present facts, but it is clear that the learned First Appellate Court has to discuss all the grounds of appeal taken during the course of arguments and the findings have to be confined to those grounds, which were agitated before it during the course of hearing. 10. Therefore, the judgment passed by the learned First Appellate Court does not stand judicial scrutiny since there is no reference to the oral or documentary evidence led by both the parties and as such I have no option but to remand the case to the learned First Appellate Court for rehearing of the appeal. - 6 - 11. In view of the above discussion, the appeal filed by the appellant is accepted and the case is remanded back to the learned First Appellate Court i.e. District Judge, Kangra at Dharamshala, for rehearing the parties and for giving its findings afresh, as discussed above. In view of the fact that the case is an old one, it is desirable that the learned District Judge, Kangra at Dharmashala shall try to dispose of the case within a period of 3 months from the date fixed for hearing of the case. The parties, through their counsel, are directed to appear before the court of the learned District Judge, Kangra at Dharamalsha, on 9.8.2010 and the learned District Judge, Kangra at Dharamshala, shall try to dispose of the case within the time given. However, till the pendency of the appeal before the learned First Appellate Court, the plaintiff shall not be disturbed from the possession, except by due process of law. The Registry is directed to send forthwith all the relevant record of the case to the learned District Judge, Kangra at Dharamshala, alongwith a copy of this judgment, so as to reach the said Court well before the date fixed. However, the parties are left to bear their own costs. July 8, 2010. (V.K. Ahuja), (TILAK) Judge.