IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No.351 of 1996 Reserved on 29.2.2008 Date of decision 19.3.2008 Ram Krishan Appellant Versus Shakti Chand and others Respondents Coram: The Hon’ble Mr.Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the Appellant: Mr. N.K.Thakur, Advocate. For the Respondents: Mr. K.D.Sood, Advocate, Rajiv Sharma, J. This regular second appeal has been filed against the judgment and decree passed by the learned District Judge, Una dated 24.5.1996 in Civil Appeal No.53/93 and Civil Appeal No.77 of 1993. The brief facts necessary for the adjudication of the second appeal are that the respondents here-in-after referred to as the plaintiffs filed a suit in the court of Sub Judge Ist Class, Court No.II, Amb on 14.11.1988 for declaration and permanent injunction against the appellant hereinafter referred to as the defendant on the plea that the plaintiffs are in possession of 13 marlas of land comprised in Khasra No.5869 earlier as tenants and after coming into operation of the Himachal Pradesh Tenancy and Land Reforms Act as owners. It was further stated that the defendant has procured wrong entry in connivance with the consolidation staff and he was threatening to take possession of the suit land from the plaintiffs. The defendant denied the contention raised in the plaint by filing a written statement. His preliminary contention was that the A.C.O. had corrected the entries on the basis of the statement made by plaintiff No.3. 1 Whether reporter of local papers are allowed to see the judgment ? No. 2 The trial Court on the basis of the pleadings of the parties had framed the following issues: 1. Whether the suit land is in possession of the plaintiffs as alleged? OPP 2. Whether the change of entries in name of defendant is illegal, as alleged? OPP 3. Whether the suit is within time? OPP 4. Whether the plaintiffs are estopped by their act and conduct ? OPD 5. Whether the suit is not maintainable? OPD 6. Relief. The trial court had recorded the following finding on the aforesaid issues framed on 18.12.1989 which reads thus:- Issue No.1 Yes Issue No.2 Yes Issue No.3 Yes Issue No.4 No Issue No.5 No Relief Suit partly decreed as per operative portion of the judgment. The trial court vide judgment dated 2.2.1993 decided all the issues in favour of the plaintiffs but gave the decree only to the extent that plaintiffs were tenants over 9 marlas of land while they were held to be simply in possession over 4 marlas of land. In other words, they were not found tenants over 4 marlas of land. The plaintiffs had filed cross objections assailing this finding of the learned trial court which were registered as C.A. Appeal No.77/1993. The defendant filed Civil Appeal No.53 of 93, challenging the judgment and decree passed by the learned trial court dated 2.2.1993. The learned District Judge had framed the following points for determination: Point No.1 Whether the findings of learned trial court as against the appellant are sustainable in the eye of law? Point No.2 Whether the finding of learned trial court partly as against the respondents/cross-objectors are sustainable in the eye of law? 3 Point No.3 Final order. The findings recorded by the learned District Judge on the aforesaid points are as under : Point No.1 Yes Point No.2 No Point No.3 Appeal dismissed and cross objections allowed per operative portion of the judgment. Mr.N.K.Thakur, learned counsel for the appellant had strenuously argued that the judgment of the learned District Judge dated 24.5.1996 is not sustainable in the eyes of law. He then contended that the trial court as well as the first appellate court has misread and mis-construed the evidence led by the defendant resulting in grave miscarriage of justice. He also contended that the order passed by the Assistant Collector 2nd Grade on 2.5.1979 was in accordance with law. Mr.K.D.Sood, learned counsel for the respondents has supported the judgment and decree passed by the learned District Judge dated 24.5.1996. The second appeal was admitted by the Court on the following question of law : 1. Whether the suit of the respondent-plaintiff was within limitation from 2.5.1979, when order was passed by A.C.II Grade/A.S.O. holding that the appellant-defendant was owner in possession of the land in dispute? I have heard the learned counsel for the parties and have also gone through the record of the case carefully. It is evident from the jamabandi for the year 1945-46 that the plaintiffs’ father Tarlok Chand and one Bhagwana were entered as non occupancy tenants over 9 marlas of land and over 4 marlas of land they were entered as in possession in lieu of partition. The owner is defendant’s father Dasaundhi Ram. The jamabandis for the years 1954- 55, 1959-60, 1963-64, 1973-74 and 1978-79 reflect the possession of the plaintiffs or their predecessor-in-interest as tenants over the whole land 4 measuring 0.13 marlas. There was only one isolated entry in the jamabandi for the year 1945-46 wherein the possession of the plaintiffs was recorded over 4 marlas of land in lieu of partition. There is nothing on record to suggest that any partition had taken place between the parties and their predecessor in interest to suggest that the plaintiffs were in possession of the part of land in lieu of partition. PW-2 Krishan Chand plaintiff No.2 had deposed about their possession over the suit land as tenants. He had categorically stated that they never relinquished possession and were never ejected from the suit land. PW-3 Nika Ram had supported the case of the plaintiffs alongwith one Ram Krishn (PW-4). The defendant had appeared as DW-1 and had stated that this father was cultivating the land. He died in 1977 and after that he started cultivating the land. He has admitted that the plaintiffs were never ejected from the suit land. DW-2 Birbal has not supported the defendant DW-3 Murari Lal is a witness to the statement of plaintiff No.3 (Ex.DW-3/A). He has stated that it was a compromise which was written and he was a witness to the same. However, he had admitted that plaintiffs No.1and 2 were not present at that time. The plaintiffs were to be conferred proprietary rights from the appointed day i.e. 30.10.1975. They had become owners of the suit land by operation of law. Once the plaintiffs had become owners by operation of law, it was for the Land Reforms Officer to consider as to whether proprietary rights were to be conferred and in case there was some difficulty qua entitlement of the land owner for resumption of the land under the provisions of the Act, it was for the Land Reforms Officer to decide that question. The Assistant Collector 2nd Grade or the Assistant settlement Officer had no jurisdiction or authority to consider the application for correction after coming into force the H.P. Tenancy and Land Reforms Act. The correction could not be carried out by A.C.2nd Grade/ASO on 2.5.1979. The application for carrying out correction in the record was not filed by the defendant himself but it was filed by his wife Tarsem Devi. She could not file the application 5 in her own capacity. There is nothing on record that any enquiry was held or whether any notice was issued to all the plaintiffs who were duly recorded as tenants. The statement made by PW-3 was not on oath. Even DW-3 had stated that the statement was in the nature of some compromise. The matter can be viewed from another angle. Once the plaintiffs had become the owners of land after coming into force of the H.P. Tenancy and Land Reforms Act they could not relinquish their ownership. The dispute arising between the landlord and tenant could only be resolved by the A.C. Ist Grade in view of Section 104(4) of the H.P. Tenancy and Land Reforms Act read with Rule 29 of the H.P. Tenancy and Land Reforms Rules. The Assistant Collector 2nd Grade was not competent at all to enter into the merits of the case and pass the order on 2.5.1979. The suit filed by the plaintiffs was within limitation. The plaintiffs were threatened by the defendant in the month of November, 1988 and the suit filed in the month of November, 1988 before the learned Sub Judge was within limitation. In view of the above detailed discussion, there is no merit in the appeal as no question of law much less a substantial question of law arises for determination in this appeal. Hence the present appeal is dismissed. March 19 , 2008 (g) ( Rajiv Sharma ),J