IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.369/2003 Reserved on: 8.4.2009 Decided on:1.7.2009 Baba Pritam Shah. …Appellant. Versus Khushi Mohammad and others. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the appellant : Mr. Ajay Sharma, Advocate. For the Respondents : Mr. N.K. Thakur, Advocate for respondent No.1. None for other respondents. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 1.8.2003 passed by the learned District Judge, Una in Civil Appeal No. 180 of 1999 and Civil Appeal No. 171 of 1999 whereby he has partially accepted two appeals and modified the judgment passed by Sub Judge, Court No.1, Una in Civil Suit No. 53 of 1990 decided on 25.10.1999. Brief facts necessary for the adjudication of this Regular Second Appeal are that the appellant-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a suit for declaration to the effect that 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 the land comprised in Khasra No. 888, 889, 882 min and 1814/907 measuring 22 kanals 14 marlas after consolidation of holdings new Khasra Nos. 844, 847, 848 measuring 23 kanals 4 marlas was in his occupation as non-occupancy tenant and he has become absolute owner by operation of law. The revenue entries showing the defendants in possession and occupation of the suit land are illegal, void, inoperative and not binding upon him. Consequential mutation No. 2563 and 2643 as well as the sale deed is also illegal and null and void. According to him, he was non-occupancy tenant on payment of Rs. 20/- per month under Smt. Surindera Devi since 1966. Patwari Halqua found him in possession of the suit land but his name was not entered in the revenue record and the same was recorded in the daily diary of Patwar Circle and the entry was also made in the Khasra Girdawari. He moved an application for correction of revenue entries in his favour before the Assistant Collector IInd Grade. He also requested the Consolidation Department to enter his name in the revenue record but of no avail. His further case is that the predecessor-in-interest of defendant No.1 Smt. Pushpa Devi wife of Bhag Singh and his brother Sh. Amar Singh filed a suit for declaration on 4.4.1978 before the Sub Judge, Una. It was decided in their favour on 8.9.1983. He filed an appeal before the District Judge, Una. The learned District Judge accepted the same. He remitted the case for fresh trial. The defendant moved an application for withdrawal of the case with permission to file fresh on the same cause of action. This application was allowed on 10.12.1987 subject to costs of Rs. 150/-. Sh. Bhag Singh and his brother Sh. Amar Singh on the basis of judgment rendered by Sub Judge, Una in civil suit No. 75/1 of 1983, got attested the mutation No. 2563 i.e. Ex.P-8 in their favour. Thereafter Sh. Bhag Singh transferred the suit land in favour of Sh. Khushi Mohammad and Nawab Khan. According 3 to him, the defendants were never in possession of the suit land and he continued to be in possession of the suit land as non-occupancy tenant. He also challenged mutation No.2643 i.e. Ex.D-9/5. The sale deed No.509 dated 12.5.1987 executed in favour of Sh. Khushi Mohammad and Nawan Khan was also challenged. The suit was contested by the predecessor-in-interest of Smt. Pushpa Devi and defendants No. 3 to 7 arrayed before the learned Sub Judge by filing a joint written statement. Defendant No.2, namely, Smt. Kashmir Devi did not contest the suit. She was proceeded exparte on 13.2.1991. Defendant No.8 Smt. Surindera Devi supported the claim of the plaintiff. The suit was also contested by the State i.e. defendant No.9. The trial court decreed the suit of the plaintiff on 25.10.1999 and decree for declaration was passed to the effect that he was in occupation of the suit land detailed in the head note of the plaint previously as non-occupancy tenant and later on by operation of law as owner and the revenue entries showing defendants No.1 to 7 in possession of the suit land were wrong and illegal. The sale deed executed by defendant No.1 i.e. Bhag Singh in favour of defendants No. 6 and 7 i.e. Khushi Mohammad and Nawab Khan dated 30.4.1987 was declared null and void. He also passed a decree for permanent injunction restraining the defendants from interfering in his possession and ownership over the suit land. The legal representatives of Sh. Bhag Singh, namely, Pushpa Devi, Jagdev Singh, Dil Bagh Singh, Chain Singh, Raksha Devi, Sumna, Kashmir Devi, Puran Devi, Nasib Devi and Bhag Devi preferred an appeal against the judgment and decree dated 25.10.1999 passed by the learned Sub Judge, Una before the learned District Judge, Una. Sh. Khushi Mohammad, Nawab Khan, Smt. Surindera Devi and State of Himachal 4 Pradesh were added as proforma respondents. The appeal was assigned Civil Appeal No. 171 of 1999. The State of Himachal Pradesh also preferred an appeal against the judgment and decree dated 25.10.1999. The appellant was added as respondent-defendant and Smt. Surindera Devi was added as proforma defendant. It was assigned Civil Appeal No. 180/1999. The learned District Judge, Una allowed both the appeals partly. The judgment and decree passed by the trial court dated 25.10.1999 was modified to the extent that the plaintiff was held entitled only to a decree for permanent injunction against defendants No. 1 to 7 restraining them from interfering in any manner over the land measuring 11 kanals 7 marlas comprised out of khasra No. 888, 889, 882 min and 1814/907 measuring 22 kanals 14 marlas after consolidation of holdings new Khasra Nos. 844, 847, 848 measuring 23 kanals 4 marlas situate in village Bangarh, Tehsil and District Una till the decision of tenancy rights by the Revenue Court or except the vacation/ejectment of the plaintiff in due course of law. This Regular Second Appeal has been directed against the judgment and decree dated 1.8.2003 passed by the learned District Judge, Una in Civil Appeals No. 171/99 and 180/99. The same was admitted on the following substantial questions of law: 1. “Whether the proforma respondents in an appeal which has become defective can be permitted to be transposed as appellants? 2. Whether a court can bring on record the legal representatives without issuing notice to them on the application filed for bringing on record the legal representatives? 3. Whether a court can allow an application for brining on record legal representatives, which is admittedly time barred without condoning the delay and setting aside the abatement? 5 4. Whether minor legal representatives can be brought on record and the matter heard without appointing any legal guardian to watch the interest of the minors in the appeal and the application? 5. Whether it is necessary for the court to issue notice to the legal representatives of the appeal after they have been brought on record as legal representatives? 6. Whether the learned lower appellate court had any jurisdiction to sit in judgment or comment upon the judgment of the competent revenue court? 7. Whether the learned lower appellate court could have refused to grant injunction with regard to the entire suit land when it had especially come to the finding that the appellant in possession of the entire suit land? Mr. Ajay Sharma, Advocate has strenuously argued that the learned District Judge has committed illegality by transposing proforma defendant as appellant in civil appeal No. 171 of 1999. He then contended that the learned District Judge could not array the legal representatives without issuing the notice on application for brining on record the legal representatives. He further contended that the application for bringing on record the legal representatives could not be allowed without condoning the delay. He has also contended that minor legal representatives brought on record were required to be represented by legal guardian to watch their interest. He lastly contended that the learned District Judge could not sit in judgment or comment upon the orders of the competent revenue court and the appellate court could not refuse to grant injunction with regard to the entire suit land as decreed by the trial court. Mr. N.K. Thakur, Advocate has supported the judgment and decree passed by the learned District Judge in Civil Appeal No. 171/1999 and 180/1999. 6 I have heard the learned counsel for the parties and perused the record carefully. Substantial Questions of Law No. 1 to 5: Since all the substantial questions of law are inter-linked and inter connected, therefore, the same are being taken up together for determination to avoid repetition of discussion of the evidence. In order to appreciate the respective submissions of the learned counsel for the parties, it is necessary to take note of the various orders passed by the learned District Judge in CMAs preferred by the parties. It will be apt at this stage to take note of the CMA preferred in Civil Appeal No. 171/1999 filed by Smt. Pushpa Devi and others. Initially, Smt. Pushpa Devi had preferred an appeal against the judgment and decree dated 25.10.1999. The defendants, namely, Jagdev Singh, Dilbag Singh, Chain Singh, Raksha Devi, Sumna, Kashmir Devi, Puran Dei, Nasib Singh and Bhag Devi through their counsel stated that they do not want to pursue the appeal and their names be deleted from the array of appeals. Accordingly, their names were ordered to be deleted on 11.1.2002. Thereafter an application under order 1 rule 10 of the Code of Civil Procedure was moved by Sh. Khushi Mohammad and Nawab Khan for transposing them as appellants. The CMA was assigned Sr. No. 277/2001. The learned District Judge passed the following order on 7.1.2003 in CMA No. 277/2001: “The application is not opposed by any party. It is ordered that applicants Khushi Mohammad and Nawab Khan who have been impleaded as proforma respondents in the main appeal be transposed as appellants in the main appeal. Necessary correction be made in the list of parties in the main appeal. The record of this application be tagged with main case file.” 7 It is in these circumstances that Sh. Khushi Mohammad and Nawab Khan were transposed as appellants. The application was not opposed, as noticed by the learned District Judge, by any party. Thereafter defendant No.9, Smt. Sumna died and an application was preferred under order 22 rule 4 of the Code of Civil Procedure for bringing her legal representatives on record. It was assigned CMA No.69/2003. It was presented on 10.4.2003 by Sh. O.P. Verma, Advocate. It was specifically averred in the application that Smt. Sumna has died on 14.8.2000 and the father, grand-father and grand-mother of the proposed legal representatives had also expired and their maternal uncles respondents No. 5 to 7 had the similar interests with that of proposed legal representatives. The parties have not chosen to file any reply to this CMA. It was allowed by the learned District Judge on 1.5.2003. The order dated 1.5.2003 reads thus: “The applicant has moved this application under order 22 Rule 4 CPC to bring on record the LRs of deceased respondent No.9 Sumna. The applicant has given the name of the four LRs in para 5 of the application. No reply sought to be filed on behalf of the respondent. Accordingly, the application is allowed and the LRs as mentioned in para No.5 of the application are brought on record. Be tagged with main file.” It is in these circumstances that the legal representatives of deceased Sumna were brought on record and their interests were protected by respondents No. 5 to 7 being maternal uncles. During the pendency of appeal before the learned District Judge, Smt. Pushpa Devi also died. An application under order 22 rule 4 of the Code of Civil Procedure was preferred for bringing on record her legal representatives. It was assigned CMA No. 70/2003. It was specifically mentioned in para 4 of the application that proposed legal representatives 8 of deceased Pushpa Devi were already on record as respondents No. 5 to 9. The learned District Judge passed the following order on 1.5.2003: “The applicant has moved this application for bringing on record the LRs of deceased Pushpa Devi respondent No.4. It has been averred in the application that Pushpa Devi has expired on 10.6.2001. The factum of death of respondent No.4 is not disputed by the respondent also. Moreover, the proposed LRs of respondent No.4 Pushpa Devi are already on record as respondents No.5 to 9. The respondent Nos. 5 to 9 are already exparte during the pendency of the appeal. Accordingly, the application is allowed. Be tagged with main appeal file.” It is in these circumstances that the legal representatives of deceased respondent No.4, who died on 10.6.2001 were brought on record. Similar application was preferred for bringing on record the legal representatives of deceased Pushpa Devi in Civil Appeal No. 180/1999. Necessary orders were passed by the learned District Judge on 1.5.2003 to the following effect: “The application under order 22 rule 4 of the Code of Civil Procedure allowed in connected appeal. The same legal representatives be brought on record in this appeal also. The appeal is taken up with the other appeal titled Pushpa Devi versus Baba Pritam Shah for final arguments on 2.6.2003.” The learned District Judge has passed appropriate orders strictly within the parameter of law while disposing of the CMA preferred under order 1 rule 10 and under order 22 rule 4 of the Code of Civil Procedure. The application preferred by Khushi Mohammad and Nawab Khan under order 1 rule 10 of the Code of Civil Procedure was not opposed by any party. It is in these circumstances they were transposed as appellants. 9 No reply was filed in CMA No. 69/2003 whereby legal representatives of Sumna were ordered to be brought on record. The interest of the legal representatives was protected by their maternal uncles respondents No.5 to 7. Similarly CMA No. 70/2003 was allowed by the learned District Judge on 1.5.2003. The legal representatives of deceased Pushpa Devi were already on record. Respondents No. 5 to 9 were already proceeded exparte, as noticed by the District Judge in his order dated 1.5.2003. In these circumstances the transposition of Sh. Khushi Mohammad and Nawab Khan was in conformity with law and the interests of the minors were protected by their maternal uncles/legal representatives of deceased Pushpa Devi who were already on record. As such substantial questions of law No.1 to 5 are answered accordingly. Substantial Questions of Law No. 6 and 7: Now, the Court will consider substantial questions No.5 and 6. It is not in dispute that Smt. Surindera Devi was owner of the suit land comprised in Khasra Nos. 888, 889, 892 min and 1814/907 measuring 22 kanals 14 marlas, new Khasra Nos. 844, 847, 848 measuring 23 kanals 4 marlas. The ownership is also proved as per the documents placed on record i.e. copy of jamabandi for the year 1953-54 Ex.D-2, copy of jamabandi for the year 1967-68 Ex.P-23/A and copy of jamabandi for the year 1972-73 Ex.D-9/2. Baba Game Shah initially moved an application for correction of entries in respect of the suit land before the Tehsildar, Una in respect of land measuring 11 kanals 7 marlas with the averment that the entry of tenancy recorded in favour of original defendant No.1 Bhag Singh and his brother Amar Singh is wrong. This application was rejected by the Tehsildar on 21.12.1983. In appeal, order dated 21.12.1983 was set aside on 28.5.1984. The Assistant Collector Grade-I, Una again rejected the application on 30.6.1988. The plaintiff filed an 10 appeal before the Collector, Una. It was decided on 31.3.1989. He ordered fresh inquiry in respect of application preferred for correction of revenue entries filed by Baba Game Shah. The Tehsildar-cum-Assistant Collector Grade-1, Una again rejected the application of the plaintiff on 3.9.1997. He filed an appeal before the Settlement Collector, Kullu, titled as ‘Baba Pritam Shah versus Jagdev and others’. It was decided on 3.12.1998. He was held to be tenant over the suit land vide Ex.P-28. The State of Himachal was not added as party in appeal titled as Baba Pritam Shah versus Jagdev and others’. In these circumstances, the learned District Judge was right in making observation that the Collector ought to have served a notice to the District Collector to protect the interests of the State which has become owner of the suit land. Similarly, the learned District Judge while disposing of the appeal on 13.11.1987 has held the State of Himachal Pradesh to be necessary party. The learned Collector, Una in order dated 31.3.1989 Ex.P-20 has also made observations regarding safeguarding the interest of the State in the suit land. The learned District Judge has rightly come to a conclusion that the trial court should not have dealt with the suit pertaining to dispute of tenancy between the parties in view of specific provisions of the Himachal Pradesh Tenancy and Land Reforms Act, 1972, more particularly, when the proceedings were pending before the Revenue Officer. He has correctly applied the ratio of Roshan Lal versus State of Himachal Pradesh and another, 1997 (2) SLC 240 while coming to this conclusion. Whether Game Shah has become tenant over the suit land or not could be determined only by the authority prescribed under the Himachal Pradesh Tenancy and Land Reforms Act, 1972. 11 Though the plaintiff has claimed tenancy before the Revenue Officer only in respect of 11 Kanals 7 marlas of land, however, the Settlement Officer in his order dated 3.12.1998 Ex.P-28 has ordered correction of the entire suit land in favour of the plaintiff. The finding recorded by the learned District Judge to this extent is liable to be upheld. The plaintiff Game Shah had filed an application only in respect of land measuring 11 kanals 7 marlas before the Assistant Collector 2nd Grade, Una and then before the ACO when the consolidation of the suit land was in progress. In the report furnished by the Kanungo i.e. PW-5/A, there is a reference only to 11 kanals 7 marlas. This was also reflected in Ex.P-6 and P-7. The tenancy is a bilateral contract entered into between the parties, which may be expressed or implied. In these circumstances, it was necessary for the learned District Judge to make observations about the orders passed by the Revenue Officer, including Settlement Officer dated 3.12.1998. The Revenue Officer could not enlarge the relief, which was not expressly sought for by the parties. The learned District Judge has in depth gone into the entire gamut of the issues involved in this suit. Consequently, in view of the aforesaid reasoning, there is no merit in this Regular Second Appeal and the same is dismissed. There will, however, be no order as to costs. 1.7. 2009 (Rajiv Sharma ), J. *awasthi*