IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.260 of 2005. Judgment reserved on 8.9.2011. Date of Decision: 19th October, 2011. _______________________________________________________ Smt. Monu alias Munni and others ..Appellants. Versus Smt. Shanta and others ..Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellants: Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate. For respondents No.1 to 3: Mr. Sunil Chauhan, Advocate. ____________________________________________________ SURINDER SINGH, J. The present Regular Second Appeal filed by the appellants, hereinafter to be referred as “the plaintiffs”, was admitted on the following substantial questions of law: “1) Whether findings as recorded by learned lower appellate court are vitiated on account of misreading, mis-appreciation and mis- construction of pleadings of parties, as well as oral and documentary evidence on record? 2) Whether well-reasoned judgment passed by learned lower trial court has been upset by learned lower Appellate Court without assigning any legal and valid reasons? 3) Whether entries in revenue record being in favour of appellants, therefore, appellants are entitled to the decree of injunction especially Whether reporters of the Local papers are allowed to see the judgment? - 2 - for the reason that presumption of correctness is attached to the revenue entries has not been rebutted by respondents/defendants? 4) Whether adverse inference was required to be drawn against respondents that they having failed to appear in support of their claim? 5) Whether keeping in view admission of RSA No.7/97, by High Court on 8.1.1997, which arose as a result of decree of reversal passed by learned District Judge Solan on 2.9.1996 pertaining to same subject matter whereby he reversed decree of injunction dated 17.12.1994 in civil suit titled as Karta Ram and others versus Sunil Kumar and others passed by learned Senior Sub Judge, Solan, the present suit was required to be consolidated or stayed? 6) Whether civil court is not competent to determine status of tenancy over agriculture land?” 2. In brief, the facts giving rise to the present appeal are that the plaintiffs filed a suit seeking the relief of permanent injunction with respect to the land comprised in Khata Khatauni No.1 min/10, khasra No.18, measuring 2 bighas 10 biswas, situated in village Lavi Kalan, Tehsil and District Solan, in short “the suit land”, claiming themselves and the proforma defendants to be in possession as tenants. It was the case of the plaintiffs that they inherited the tenancy from Nanda, original tenant, who was in its cultivating possession and raised an orchard, which is now - 3 - fruit bearing. The proprietary rights could not be conferred because the defendants being unmarried women and this was a disability under the HP Tenancy and Land Reforms Act for the conferment of the tenancy rights. It is alleged that the defendants in the last week of July, 1996 prior to filing of the suit, threatened them to interfere in the peaceful possession of the plaintiffs and the proforma defendants which necessitated them to file the suit for injunction. 3. The suit was resisted and contested by the defendants and they claimed themselves to be in exclusive possession of the suit land. The contention of the tenancy as raised by the plaintiffs is specifically denied and it is also denied that Nanda was ever tenant of the suit land. Therefore, there was no question of inheriting the tenancy. It was further averred that the matter stood already decided in earlier suit titled, Karta Ram versus Kaushalaya (Civil Appeal No.7-S/13 of 1995, decided on 2.9.1996 by the learned District Judge), therefore, the suit is not maintainable and is hit by the principle of res-judicata. By way of preliminary objections, the defendants vis-à-vis also took the points of estoppel, non-joinder and - 4 - mis-joinder of parties. Proforma defendants admitted the claim of the plaintiffs. 4. On the pleadings of the parties, the learned trial Court framed the following issues: 1) Whether the plaintiff is entitled for the relief of injunction as prayed for? .. OPP. 2) Whether the suit is not maintainable in the present form? .. OPD. 3) Whether the plaintiffs are estopped from filing the suit as alleged? ..OPD. 4) Whether the suit is barred by principle of res judicata as alleged? .. OPD. 5) Whether the suit is bad for non-joinder and mis- joinder of necessary parties? .. OPD. 6) Relief. 5. The learned trial Court after considering the evidence of both the parties answered issue No.1 in affirmative, others in negative, as such decreed the suit. In appeal filed by the contesting defendants, the learned District Judge held that the revenue entries in favour of the plaintiffs and proforma defendants are wrong and are in- conflict with the previous entries and no presumption of truth in favour of the plaintiffs to hold them tenants would arise and the evidence with respect to the rent is also contradictory. Therefore, the oral evidence of the defendants with respect to the possession was in preference to the evidence of the plaintiffs worth accepting. - 5 - Further there was no relationship of land-lord and tenant between them. Thus the findings of the learned trial Court were reversed and the suit of the plaintiffs was ordered to be dismissed, hence the present appeal. 6. Shri G.D. Verma, learned Senior Advocate duly assisted by Shri B.C. Verma, forcefully argued that the findings of the learned District Judge are neither supported by material on record nor provisions of law. The learned Counsel further submitted that even though tenancy is not proved but the possession of the plaintiffs and proforma-defendants stands proved qua the suit land as per judgment and decree passed by the learned trial Court in previous suit filed by them against the father of the present defendants and their brothers. Therefore, the learned first appellate Court was not competent to enter into this controversy which fell within the purview of Land Reforms Officer exercising the powers of Assistant Collector 1st Grade. Since the suit stood dismissed against the defendants for not taking steps for their service, the contesting defendants took undue advantage of the judgment passed by the learned District Judge in Civil Appeal No.7- - 6 - S/13 of 1995 decided on 2.9.1996 (Ext.PW4/D) started causing interference in the declared possession of the plaintiffs and proforma defendants which necessitated the filing of the present suit on a different cause of action. Since the plaintiffs and proforma defendants were held to be in possession of the suit land in the previous suit the learned first appellate Court was not justified in this case to reverse well reasoned findings of the learned trial Court. 7. Contra, Shri Sunil Chauhan, learned Counsel for the defendants forcefully argued that the entries of the plaintiffs in the latest jamabandi as non-occupancy tenants qua the suit land were unauthorized or could be due to some mistake, but it is clear that there is no material to justify the change of entries in favour of the plaintiffs which were in conflict to the earlier consistent entries of the defendants as owners in possession. Therefore, presumption of correctness is not attached to it. To substantiate this fact, he cited the judgment of the Supreme Court in Durga (deceased) and others v. Milkhi Ram and others, 1969 P.L.J.105. He further argued that the entries made by the Patwari in the official record are - 7 - only for fiscal purpose and these entries are required to be proved in accordance with law. He also pointed out that the evidence with respect to the rent is quite contradictory and no rent is proved to have been paid. He also referred to the evidence to point out that the plaintiffs are neither non-occupancy tenants of the suit land nor in possession in any capacity, thus well reasoned judgment passed by the learned first appellate Court cannot be interfered with. 8. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the record. To substantiate the rival contentions a brief discussion of the evidence is necessitated. PW1 Ishwar Dutt though on the strength of the entries in the Jamabandi for the year 1994-95 Ext.PW1/B, stated that he inherited the tenancy from his father and is in possession of the suit land, but he did not know under whom his father was the tenant. He also stated that the contesting defendants had tried to cause interference into the suit land on which he had tomato-crop. In cross-examination he categorically stated that he was neither - 8 - dispossessed from the suit land nor his father had left the possession thereof. He also admitted that the entries in the revenue record were incorrect. PW2 Shyam Lal supported his cause with respect to the possession. 9. Contra, defendants examined DW4 Mahesh Ram, father and GPA of the contesting defendants. He had cucumber-crop on the vacant portion of the suit land and partly it is covered by plantation of trees. He mainly banked upon the report of the Kanungo to which DW2 has endorsed. He had visited the spot in a correction application Ext.DW1/B moved by him before the Tehsildar, but appellants were not present. He however found him in possession of the suit land and no such crop as alleged by the plaintiffs was found on the spot. He further stated that in the earlier suit the appeal was decided by the District Judge in favour of the contesting defendants vide judgment Ext.DW4/B. He admitted that he had moved the application for correction in his personal capacity and not on behalf of the contesting defendants. He denied that he had procured false report from the Kanungo. - 9 - 10. DW5 Man Dutt stated that the suit land is in possession of the defendants. DW3 Inder Dutt, Patwari is a witness of proving the copy of Roznamcha Ext.DW3/A. 11. Although there is contradictory evidence with respect to the rent and lack of record of the entry of non-occupancy tenant in the revenue record in favour of the plaintiffs and proforma defendants and also their predecessor-in-interest and parties were not at issue, yet if the possession of the plaintiffs and proforma defendants is proved, they are entitled for a decree of possession to protect it till they are evicted in accordance with law. Significantly, in earlier Suit No.404/1 of 1990 filed by the plaintiffs and proforma defendants on a different cause of action against Mahesh Ram and his sons Sunil Kumar, Madan Mohan, Anil Kumar, Vijay Kumar, Satish Kumar, Shillu Kumar, Vijay Sheel and also against the defendants herein qua the suit land was decreed on 17.12.1994 for injunction. The copy of the judgment/decree is Ext.PW4/C, whereas qua the contesting defendants it was set aside in appeal by the learned District Judge in Civil Appeal No.7-S/13 of 1995 decided on - 10 - 2.9.1996 (Ext.PW4/B) as it stood already discussed against them for not taking steps by the plaintiffs, as stated by the learned District Judge in his judgment. The other defendants did not challenge the decree against them. Thus the possession of the plaintiffs and the proforma defendants with respect to the suit land stood declared, and the oral evidence regarding possession of the plaintiffs and proforma defendants gets strengthened. Thus in the above back ground and proved facts it was not necessary for the learned first appellate Court to hold whether the revenue entries were correct or not or that the plaintiffs and proforma defendants or their predecessor-in-interest were non- occupancy tenants of the suit land, as it neither fell within his jurisdiction to enter into this controversy nor the parties were at issue or sought any findings thereupon. 12. For the afore-stated reasons, in the present case, the plaintiffs are held to be in possession of the suit land, therefore, the plaintiffs are entitled for a decree of injunction to protect their possession. The judgment relied upon by the learned Counsel for the defendants is of no - 11 - relevance. Therefore, the impugned judgment and decree passed by the learned District Judge in Civil Appeal No.55-S/13 of 2003 is hereby set aside and that of the learned trial Court is restored. Consequently, the suit of the plaintiffs stands decreed and the defendants, their servants or assignees are hereby restrained from causing any interference and dispossessing the plaintiffs and proforma defendants from the suit land comprised of Khasra No.18, measuring 2 bighas 9 biswas, situated in village Lavi Kalan, Tehsil and District Solan by a decree of permanent perpetual injunction, till they are evicted from the suit land in due course of law. Consequently, the appeal is allowed. Substantial questions of law are accordingly answered. 13. Parties to bear their own costs. October 19, 2011. (Surinder Singh), (rc) Judge.