IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 124 of 1995. Reserved on:16.3.2009. Decided on: 5.5.2009. __________________________________________________ Sher Singh and others. … Appellants. Versus Pohlo Ram and others. … Respondent. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the appellants : Mr. Karan Singh Kanwar, Advocate. For Respondents No. 1 & 2 : Mr. Baldev Singh, Advocate. For Respondents No. 3 to 11 : Nemo. ___________________________________________________________ Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree dated 24.12.1994 passed by the learned Additional District Judge, Una in Civil Appeal No. 16/94 (92). Brief facts necessary for adjudication of this regular second appeal are that the appellants-plaintiffs (hereinafter referred to as the plaintiffs for convenience sake) had filed a suit for declaration. It was alleged that the land measuring 20 Kanals 8 Marlas comprised in Khewat No. 30, Khatauni Nos. 20 to 24, Khasra Nos. 349/178, 94, 344/171, 345/175, 343/171, 173, 346/175, 348/178, 95, 162, 163, 170, 172, 174 and 347/178 is owned and possessed by the plaintiffs and respondents-defendants (hereinafter referred to as the 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 defendants for convenience sake), as per the shares mentioned in the plaint. They have further prayed for consequential relief of permanent injunction against defendants No. 1 & 2 restraining them from interfering in the plaintiffs’ enjoyment of their share in the suit land and in the alternative suit for joint possession to the extent of 1/8th share of the plaintiffs with defendants No. 1 & 2. The suit was contested by defendants No. 1 & 2. They have stated that the plaintiffs are in separate possession of the suit land measuring 6 Marlas situate in Khasra No. 347/178 and the defendants are in separate possession of the suit land measuring 7 Kanals 3 Marlas over Khasra Nos. 343/171, 173, 346/175 and 348/178. They have also pleaded that their predecessors in interest were cultivating the suit land and thereafter, they are cultivating the suit land as owners. They have supported the entries in the name of Nathu and Bambria. The trial Court decreed the suit on 30.9.1989. The defendants No. 1 & 2 preferred an appeal before the learned Additional District Judge, Una. The learned Additional District Judge, Una allowed the appeal and the judgment and decree passed by the learned Sub Judge was set aside. This regular second appeal is directed against the judgment dated 24.12.1994. This regular second appeal was admitted on the following substantial questions of law: 1. Whether the learned lower appellate court has rightly held that civil court has no jurisdiction to try the suit? 2. Whether in the title suit of the plaintiffs, mere reference by way of denial of tenancy on suit land of some of the defendants who are ex-parte will exclude the jurisdiction of civil court to try the suit? 3 Mr. K.S. Kanwar, Advocate has supported the judgment and decree passed by the learned Sub Judge Ist Class, Una. He then contended that the Civil Court had jurisdiction to decide the suit. Mr. Baldev Singh, Advocate has supported the judgment and decree passed by the learned First Appellate Court. I have heard the learned counsel for the parties and have perused the record carefully. Since the substantial questions of law are inter-connected and inter-linked, they have been taken up together for determination. PW-1 is plaintiff No.4. He deposed that Nathu and Bambria had no concern with the suit land nor they were inducted as tenants by the owners. He has denied that he is in possession of only 6 Marlas of land in Khasra No. 347/178. PW-2 Lal Singh has supported the case of the plaintiffs. PW-4 has proved Ext. PW-4/A being copy of Rapat No. 49. DW-1 is Pohlo-defendant No.1. He has deposed that he is in cultivatory possession of the land measuring 7 Kanals 3 Marlas. According to him, earlier this land was in possession of their father as tenant-at-will. He also deposed that plaintiffs are cultivating 6 Marlas since their ancestors’ time. According to him, they are cultivating the land in their possession. Ext. P-1 is the copy of Jamabandi for the year 1922-23. In this Jamabandi, Nathu and Bambria are recorded to be occupancy tenants of the suit land. Ext. P-2 is the copy of Jamabandi for the year 1926-27. In this, the earlier entries are re-iterated. Ext. D-1 is the copy of Jamabandi for the year 1918-19. Ext. D-2 is the copy of Jamabandi for the year 1930-31. In these entries, Nathu and 4 Bambria are recorded as occupancy tenants. Ext.D-3 also repeats the entries made in Ext. D-2. A bare perusal of Exts. D-1, D-2 and D-3 shows that Nathu and Bambria were recorded as occupancy tenants. They have been conferred the proprietary rights on the basis of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953. The trial Court by totally misconstruing and interpreting the revenue entries and ocular evidence had recorded the findings that neither Nathu nor Bambria were ever recorded as occupancy tenants. In fact, entries were made in the revenue record to this effect. The learned Sub Judge has erred in law by not following the judgment rendered by the Full Bench of this Court in Devi Singh etc. Vs. Hukam Ram etc., 1977 ILR HP 357. Their Lordships have held that the tenant recorded as occupancy tenant in revenue record is conclusive proof of such tenancy. It was further held that the Court should not enquire into circumstances of such entry being erroneous. Their Lordships have held as under: “The point in controversy is limited to determining whether it is sufficient for the purposes of Section 3 of the Act of 1953 that a tenant should be recorded as an occupancy tenant or it is open to the court to go behind the entry and determine whether on facts and in law the tenant can be described as an occupancy tenant and the recorded entry is erroneous. The point is a short one, and can be easily disposed of. The Act of 1953, as its Long Title shows, is a Statute framed with the object of vesting proprietary rights in land held by occupancy tenants. Parliament, when enacting the statute, had in contemplation that disputes would arise whether a tenant was an occupancy tenant or not, and in order to cut short all 5 controversy it embarked upon a principle which had by then appealed to other Legislatures also. By appropriately defining the expression “occupancy tenant”, it made the recorded entry conclusive proof of the fact that the tenant so recorded was an occupancy tenant. Section 2 (f) of the Act says: “2. (f) “Occupancy tenant” means a tenant who, immediately before the commencement of this Act, is recorded as an occupancy tenant in the revenue records and includes a tenant who, after such commencement, obtains a right of occupancy in respect of the land held by him whether by agreement with the landlord or through a court of competent jurisdiction or otherwise, and includes also the predecessors and successors in interest of an occupancy tenant.” Section 3 (a) of the Act provides: “3. Vesting of proprietary rights in occupancy tenants and extinguishment of corresponding rights of landlords.- Notwithstanding anything to the contrary contained in any law, custom or usage for the time being in force on and from the appointed day: (a) all rights, title and interest (including the contingent interest, if any, recognised by any law, custom or usage for the time being in force and including the share in the Shamilat with respect to the land concerned) of the landlord in the land held under him by an occupancy tenant, shall be extinguished, and such rights, title and interest shall be deemed to vest in the occupancy tenant free from all encumbrances, if any, created by the landlord: 6 Provided that the occupancy tenant shall have the opinion not to acquire the share in the Shamilat by giving a notice in writing to the Collector within six months of the publication of this Act or from the date of his obtaining occupancy rights whichever is later.” It is apparent that under Section 3 the rights of the original proprietor are extinguished with effect from the appointed day (June 15, 1952), and simultaneously an occupancy tenant acquires proprietary rights in the land. Who is an “occupancy tenant” for the purposes of this Act is defined by Section 2 (f). The definition divides the tenants covered by it into two categories – those who are to be considered with reference to the date immediately before the commencement of the Act and those after such commencement. It will be noticed that the recorded entry has been made the test with respect to the first category. It is a special criterion, a departure from the normal rule, and full effect must be given to it. The second category, which defines an “occupancy tenant” by reference to the usual modes of acquiring an occupancy tenancy embodies the normal rule. The different definitions in respect of the two categories demonstrates that a clear separation is intended between the two, and therefore when the first category is considered, it is the recorded entry alone which is material. It is only where the recorded entry is induced by fraud or void ab initio by reason of it being made by incompetent authority or otherwise, that the entry can be questioned and an enquiry taken behind it. The mere circumstance that the entry is erroneous on its merits does not permit such an enquiry. It is urged by learned counsel for the respondent that Section 2 (f) requires the satisfaction of two ingredients, firstly, that the tenant is an occupancy 7 tenant, and secondly, that he is recorded as an occupancy tenant in the revenue records. The submission is without force. If the tenant is in reality an occupancy tenant, there is no point in requiring that he should also be recorded as such. Emphasis has been laid on the recorded entry, and the recorded entry has been made conclusive proof that the tenant recorded is an occupancy tenant. We are of opinion that if the revenue records show that on June 15, 1952, Smt. Devku stood recorded as an occupancy tenant the court is precluded from going behind that entry in order to determine whether, for the purpose of applying Section 3 of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953, she can be held to be an occupancy tenant. As regards Hira, since he had died before that date, the entry in respect of him does not appear relevant. We are supported in this opinion by the view taken by Jagjit Singh, J., in R.S.A. 226 of 1967 (decided on November 27, 1969), and the observations of M.H. Beg, C.J. (as he then was) and one of us (C.R. Thakur, J.) in L.P.A. 31 of 1970 (decided on September 5, 1973).” The judgment relied upon by the learned Sub Judge i.e. Tek Singh Vs. Bur Singh, 1961 PLR 647 has been distinguished by the Full Bench. The Subordinate Courts are bound by the law declared by the High Court. He was required in the present case to consider the ratio of Full Bench instead of taking a contrary view. It was not the case where only one isolated entry has been made in the revenue record. As noticed above, there are consistent entries recorded in the revenue records whereby Nathu and Bambaria were recorded as occupancy tenants. Nathu and Bambaria were rightly conferred proprietary rights as per Section 3 of the Punjab 8 Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953. The subsequent entry made in the Jamabandi for the year 1977-78 i.e. Ext. P-3 was also in accordance with law, whereby defendants No. 1 & 2 have been shown as tenants-at-will over land measuring 7 Kanals 3 Marlas. This entry has not been rebutted by the plaintiffs. In view of the above discussion, it was not open to the civil court to go into the entries of tenancy recorded in the revenue record and on the basis of which proprietary rights were conferred upon Nathu and Bambaria. In fact, the civil court, as held by the Full Bench of this Court, was precluded from going behind that entry in order to determine whether the proprietary rights have been legally conferred upon Nathu and Bambaria or not. Accordingly, there is no merit in this regular second appeal and the same is dismissed. No costs. (Rajiv Sharma), J. May 5, 2009. (cr)