IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RSA No. 48 of 1997 Date of Decision : May 7, 2008 Karam Chand & Others …Appellants Versus: State of H. P. & another …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 For the appellants: Mr. Ramakant Sharma, Advocate. For respondent No.1: Mr. Vivek Thakur, Addl. A. G. with Ms. Shubh Mahajan, Dy. A. G. For respondent No.2: Mr. Sanjeev Kuthiala, Advocate. Sanjay Karol, J. (Oral) The present appeal arises out of the concurrent findings of facts recorded by the Court below. S/Shri Hari Chand, Surinder Mohan, Narinder Mohan, sons of late Shri Ishwar Dass as plaintiffs filed a suit for declaration, against defendant No.1-State of H.P. and Shri Sant Ram defendant No.2, praying for a decree of declaration to the effect that the plaintiffs are owners in possession of land measuring 3 kanals 19 marlas, comprising in khewat No.33, Khatauni No.42, bearing khasra No. 78 (old khasra No.76) 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 situate in Tika Krod Brahmana, Mauza Arlu, Tehsil Bangana, Distt. Una (H. P.) (hereinafter referred to as ‘the suit land’). An alternate prayer of possession was also made. The suit was filed on the premise that even though in the revenue record, the suit land was recorded to be owned as “Shamlat Tika Hasab Rasad Malguzari” but however, the plaintiffs possession remained intact till the year 1956-57, when behind the plaintiffs’ back, the cultivatory possession of defendant No.2 was recorded in the Rapat Roznamcha and subsequently mutation No.126 dated 12.5.1986 was also sanctioned conferring proprietary rights upon defendant No.2. This action of the State was challenged in the suit. State of H.P., defendant No.1 did not file any written statement and defendant No.2 resisted the suit on the ground that he has been in exclusive possession of the suit land as Hissedar owner for more than 50 years and the revenue entries recorded were based on the factual position at the spot. On the pleadings of the parties, the trial Court framed the following issues:- 1) Whether the plaintiffs are owners in possession of the suit land as alleged? OPP 2) Whether suit land has not vested with the State of H.P. as alleged? OPP 3) Whether defendant No.2 is in possession of the suit land as Hissedar owner as alleged? O.P.D.(2) 4) Whether suit is within limitation? OPP 5) Whether suit in present form is not maintainable? O.P.D.(2). 3 6) If issue No. 3 not proved, whether defendant No.2 has become owner of the suit land by way of adverse possession? O.P.D.(2) 7) Relief. Relying upon the revenue entries Ext.P-1 to Ext.P-7, Ext.D-1, Ext.DW-2/A and Ext.D-11, the Court found defendant No.2 to be in cultivatory possession of the suit land for more than 50 years. The Court also held that the land in question had not vested in the State of H.P. by virtue of the provisions of The H.P. Village Common Lands Vesting and Utilization Act, 1974 (hereinafter referred to as ‘the Vesting Act’). Aggrieved by the judgment and decree dated 29.11.1991 passed by the Sub Judge Ist Class (I), Una, H.P., the plaintiffs filed Civil Appeal No. 3 of 1992 titled as Hari Chand & others v. State of H.P. and another, which was also dismissed vide judgment and decree dated 8.10.1996. The first Appellate Court while affirming the findings of the trial Court held that the revenue entries recording defendant No.2 to be in cultivatory possession and also conferring proprietary rights were not assailed by the defendants under the provisions of the Revenue Acts. The appeal was admitted on the following substantial questions of law:- 1. Whether the impugned judgment and decree is the result of complete misreading, misinterpretation as well as misappreciation of documents Ext.P3 copy of jamabandi for the year 1914-15, Ext.P4 copy of missal hakiat for 1910-11, Ext.D1 copy of 4 jamabandi for the year 1936-37, Ext.D2 copy of jamabandi for the year 1940-41, Ext.P5 and Ext.P6 jamabandies for the years 1944-45 and 1952-53? 2. Whether both the learned courts are right in accepting the Rapat Roznamcha dated 5th October, 1955 when admittedly, the Rapat has been made without complying with the principles of natural justice, equity and fair play inasmuch as neither any notice to the appellants nor an opportunity of hearing was afforded? 6. Whether the impugned judgment and decree is the result of non-consideration of letter dated 18th December, 1983 by S.D.O.(C) Una which categorically states regarding incorporation of status in the revenue records as it was existing on 26th of January, 1950, whereas mutation No. 126 dated 12th May, 1986 is on the contrary and this mutation appears to have been up-held by both the learned courts below? From the documents Ext.P3 to Ext. P6, Ext.D1, Ext.D2 and also from the other revenue record being Ext.P7, Ext.D4 to Ext.D11, it is evident that the suit land is entered in the ownership as Shamlat Tika Hasab Rasad Malguzari and in the column of possession land is shown in the name of Paras Ram and Sant Ram but under cultivation of Birja and Sant Ram in equal shares. Vide copy of Rapat Roznamcha (Ext.DW-2/A) dated 5.10.1995, change in cultivatory possession of Sant Ram defendant No.2 for the suit land was shown. Khasra Girdawri Ext.D3 also indicated the same. Revenue record placed by the parties pertain to the period 1914-15 onwards till 1985-86. It is noticeable that after the year 1955-56, cultivatory possession of Shri Sant Ram alone is reflected in the revenue record. 5 The defendants witnesses Shri Ram Rattan (DW-3), Shri Gurdas Ram (DW-1) and Shri Shakti Chand (DW-2), have also deposed that the plaintiff Sant Ram is in possession of the suit premises. In the plaint itself the plaintiffs have pleaded that since the year 1955-56, entries have been wrongly recorded in the name of defendant No.2 and have claimed an alternative relief of possession of the suit premises. Therefore, in this background, it cannot be said that the impugned judgment and decree is a result of complete misreading, misinterpretation and mis-appreciation of the documents placed on record. Rapat Roznamcha Ext.DW-2/A was prepared on 5.10.1955. All subsequent revenue entries till the date of filing of the suit consistently show the change. Defendant No.2 has been able to show his exclusive cultivatory possession since then. None of the revenue entries were assailed by the appellants at any point in time. The plaintiffs remained silent and, therefore, their conduct establishes the fact that possession at the ground level so reflected in terms of the Rapat Roznamcha was accepted by them. Revenue record Ext.P3 from 1914 onwards also shows that defendant No.2 is owner in possession of Khasra Nos. 75 and 109 which is adjoining to the suit land. The plaintiffs have nothing to do with the said khasra numbers. Therefore, it cannot be said that Rapat Roznamcha was made contrary to the principles of natural justice, equity and fair play. The requirement of issuing notice was necessitated for the first time 6 in the year 1993 when the H.P. Land Records Manual was notified, and prior to the same there was no requirement in law to issue notice. As per the practice adopted by the revenue authorities, the entries recorded by the Patwari Halqua were based on the factual position at the ground level. Keeping in view the facts and circumstances of the present case, it cannot be said that Ext.DW-2/A was prepared in violation of the principles of natural justice. Learned counsel for respondent No.2 has brought to my notice the provisions of Section 3 of the Punjab Land Revenue Act, 1887 and the Rules and Instructions issued thereunder (as applicable to the present case) in the year 1955- 56. The Patwari is required to maintain a diary (Roznamcha Vakiyati). It contains a record of facts of matters regarding cultivating of the land, estate of crops, conditions and rules of land owner and tenant and the interest of the Government. The entries are required to be made on the date on which the events come to the notice of the patwari. The revenue entries were prepared by the revenue officers in discharge of their official duties. The substantial question of law No.2 is answered accordingly. The substantial question of law No. 6, in my view, does not arise for consideration at all as it is not a case of either of the parties that the instructions issued vide letter dated 7 18.12.1983 by the SDO (C) were not followed in any manner. Mutation No. 126 dated 12.5.1986 is not contrary to the same as the extent of the land did not exceed limits of land holdings prescribed therein. Learned counsel for the appellants has referred to and relied upon a decision rendered in Durga and others v. Milkhi Ram and others (1969 PLJ 105) to contend that in the absence of any material, all entries subsequent to the year 1955 have been unauthorizedly made and therefore, ought to be ignored. In my view, reliance on the same to the present fact situation is not correct. The Court was dealing with the question as to whether the rebuttable presumption under Section 44 of the Punjab Land Revenue Act stood discharged by the appellants or not. In the present case, the defendants witnesses themselves have deposed and proved that the defendants have been exclusively cultivating the land from the year 1955 onwards. It is also to be noticed that Ext.D1 jamabandi pertaining to the year 1936-37 reflects the fact that defendant No.2 along with Paras Ram and Barja is in cultivatory possession of the suit land. Learned counsel for respondent No.2 has also brought to my notice that after 1955, the settlement proceedings have taken place and the factual position as recorded vide Ext.DW-2/A was not disputed. 8 For all the aforesaid reasons, the present appeal is dismissed and the questions of law are answered accordingly. The interim order dated 28.7.1997 is vacated. Pending application, if any, also stands disposed of. ( Sanjay Karol ), Judge. May 7, 2008. (rana)