IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.166 of 1998 Judgment reserved on : 22.3.2010 Date of decision : 30.4.2010 ____________________________________________________ Pritam Chand and others …Appellants. Versus Kaso Devi and others …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the appellants : Mr.R.K. Gautam, Sr. Advocaqte with Mr. Mehar Chand, Advocate. For the Respondents : Mr. Rajnish K. Lall, Advocate, vice Mr. K.D. Sood, Advocate for respondents No.1(a),1(b),1(d), 1(e), 1(f), 2(a), 2(b), 2( c ) and 3. Kuldip Singh, J This appeal has been directed against judgment, decree dated 31.12.1997 passed by learned Addl. District Judge (1) Kangra at Dharamshala, reversing judgment, decree dated 26.8.1992 passed by learned Sub Judge Ist Class, Kangra in Civil Suit No.110/84 and partly decreeing the suit of the plaintiffs, declaring them in possession of the suit land as non-occupancy tenants, the entries showing the defendants in possession of the suit land were held null and void and not binding on plaintiffs. The defendants were further restrained by permanent injunction from interfering in the _____________________________ whether reporters of Local Papers may be allowed to see the Judgment? Yes 2 possession of plaintiffs over the suit land. The appellants and some others were the defendants whereas the respondents No.1 (a) to 3 themselves or through their predecessor were the plaintiffs. The parties for convenience are referred as plaintiffs and defendants in this judgment. 2. The further facts are that plaintiffs had filed a suit for declaration that they are in possession of the land more specifically described in the plaint as tenants on payment of rent. The entry of tenancy of the suit land in the name of their father Riju was wrongly removed from the column of possession and it was wrongly shown under self cultivation. The defendants may be restrained from interfering in their possession. The plaintiffs have also prayed for possession by way of pre-emption of land measuring 0-08-17 hects equivalent to 495/1200 shares out of the suit land on payment of Rs.1800/- to respondents No.1 to 4. 3. The further case of the plaintiffs is that suit land is recorded under the ownership and possession of defendants vide jamabandi for the year 1981-82. The suit land during the life time of father of the plaintiffs was in his possession as tenant and after his death devolved upon the plaintiffs as tenants on payment of rent and they are in possession of the suit land. The defendants in collusion with the settlement staff manipulated to get the wrong entry of self cultivation, which is without any justification. The plaintiffs never relinquished the tenancy nor they were ejected from the suit land. The defendants may be restrained from interfering in their possession. 3 The defendants No.1 to 4 had purchased 495/1200 shares out of the suit land by showing fictitious sale consideration. The defendants No.1 to 4 are strangers to the suit land. The plaintiffs being tenants have preferential right to purchase the suit land by way of pre-emption. 4. The suit was contested by the defendants and they have taken preliminary objections of locus standi, cause of action, maintainability of the suit. It has been alleged that predecessor-in- interest of the plaintiffs was co-sharer on the suit land which was partitioned by Assistant Collector Ist Grade vide order dated 3.7.1976. The suit is barred by limitation. The plaintiffs are estopped by their act and conduct from filing the suit. The plaintiffs have no superior right, the suit is for partial pre-emption. On merits, it has been denied that father of the plaintiffs was tenant on the suit land. According to defendants he was co-sharer with defendants and other co-sharers. The partition took place on 3.7.1976 and thereafter possession was delivered to all the co-sharers on 7.10.1976. The father of the plaintiffs had purchased the land from Jai Mal co-sharer and the same land was allotted to him in partition. The father of the plaintiffs could not be the tenant being co-sharer. The defendants have denied their collusion with the settlement staff for change of the entry. The defendants have admitted that defendants No.1 to 4 had purchased part of the suit land on payment of Rs.2500/-. The defendants have denied that plaintiffs have right to purchase that part of the suit land by way of pre-emption. The defendants have denied the possession of the plaintiffs on the suit land. The plaintiffs had filed replication and reasserted their case while denying the defence of the defendants. 4 5. On the pleadings of the parties the following issues were framed in the suit:- 1. Whether the plaintiffs are in cultivating possession over the suit land? ….OPP 2. Whether the revenue entries deleting the name of father of the plaintiffs in the column of possession over the suit land are wrong and are liable to be corrected? ….OPP 3. Whether the plaintiffs have got superior rights to pre-empt the sale? ….OPP 4. Whether the sale price was fixed in a good faith and actually paid? ….OPD 5. If issue No.4 is not proved, what is the market value of the land sold? …OPP 6. Whether the plaintiffs have got no cause of action and locus standi to sue? ….OPD 7. Whether the suit is not maintainable in the present form? ….OPD 8. Whether the suit is within time? ….OPD 9. Whether the act and conduct of the plaintiff is a bar to the present suit? …OPD 10. Whether the suit is form ‘B’ is not maintainable as alleged? ….OPD 11. Whether the suit is bad for partial pre-emption as alleged? ….OPD 12. Whether the defendants are entitled for stamps and registration charge, if so, to what amount? OPD-1 to 4. 13. Relief. The issues No.6,7,9 were answered in affirmative, issues No.1,2, 8 in negative, issues No.3,4,5,10,11,12 were not pressed. 6. The learned Sub Judge dismissed the suit on 26.8.1992. The decision dated 26.8.1992 was assailed in appeal by plaintiffs which was allowed by learned Addl. District Judge on 15.9.1995. 5 RSA No.363 of 1995 was filed against judgment, decree dated 15.9.1995 which was allowed when it was found that defendant Harbans Lal had died during the pendency of appeal in the lower Appellate Court. The Addl. District Judge was directed to decide the appeal afresh. After remand the learned Addl. District Judge has decided the appeal on 31.12.1997 and decreed the suit of the plaintiffs as noticed above. The defendants have come in second appeal which has been admitted on following substantial questions of law:- 1. Whether the lower Appellate Court has failed to give its findings on the questions raised in the Appeal No.363/95 before the Hon’ble High Court of Himachal Pradesh at Shimla? 2. Whether the lower Appellate Court has wrongly decided the point of limitation in the present matter? 3. Whether the question of rebuttal of documentary evidence has been wrongly decided by the lower Appellate Court? 4. Whether the lower Appellate Court has wrongly decided the question of jurisdiction? 5. that non-appreciation of evidence on record itself is a substantial question of law? 7. I have heard learned counsel for the parties and have also gone through the record. The learned counsel for the appellants has submitted that lower Appellate Court has failed to give its findings on questions raised in RSA No.363 of 1995. The issue of limitation has been wrongly decided. The point of jurisdiction has been wrongly decided by the learned Addl. District Judge. The plaintiffs have not rebutted the documentary evidence led by the defendants. The 6 evidence has not been properly appreciated. The learned counsel for the respondents No.1(a),1(b),1(d), 1(e), 1(f), 2(a), 2(b), 2( c ) and 3 has supported the impugned judgment, decree. 8. The RSA No.363 of 1995 was allowed on 6.8.1997. It was found that Harbans Lal had died during the pendency of the appeal in the learned lower Appellate Court and steps ought to have been taken for bringing on record his legal representatives in the lower Appellate Court. In these circumstances, judgment, decree dated 15.9.1995 passed by learned Addl. District Judge was set aside and the case was remanded to learned Addl. District Judge for afresh decision. In the decision dated 6.8.1997 there was direction to Addl. District Judge to decide the appeal afresh. The learned Addl. District Judge could not give decision on the points raised in RSA NO.363 of 1995 in absence of specific direction by this Court at the time of remand. The learned Addl. District Judge was required to decide the appeal afresh in accordance with law. The learned counsel for the appellants has failed to substantiate the point raised under substantial question of law No.1. Accordingly, substantial question No.1 is decided against the appellants. 9. The case of the plaintiffs is that suit land during the life time of the father of the plaintiffs was in his possession as tenant and after his death plaintiffs are tenants on the suit land. In the jamabandi for the year 1981-82 the suit land has been wrongly recorded under the ownership and possession of defendants. It is the case of the plaintiffs that this entry has been made in favour of defendants by the Settlement Staff in manipulation with the defendants. The plaintiffs had never relinquished /abandoned their tenancy nor were they ejected from the suit land. In the plaint the plaintiffs have prayed relief of declaration that they are in possession of land measuring 0-19-80 hects. as tenants on payment of rent and are entitled to 7 remain in possession as such in future. The entry of tenancy of their father was wrongly removed. The defendants be restrained by permanent injunction from interfering in the possession of the plaintiffs. In alternative the suit is for possession and in further alternative possession of land measuring 0-08-17 hects. out of the land measuring 0-19-80 hects. by way of pre- emption. 10. The defendants in the written statement have taken the plea that the suit is not within limitation without elaborating how the suit is not within limitation. The learned Sub Judge under issue No.8 of limitation has held that entry was changed in the year 1971-72. The cause of action accrued to plaintiffs in the year 1971-72 or in the year 1976 when the land was partitioned among the co-sharers. The limitation for challenging the adverse entries started latest by 1976 under Article 58 of the Limitation Act. The suit was filed in the year 1984 and learned Sub Judge ultimately held the suit is barred by limitation. 11. The suit is for declaration alongwith decree of permanent prohibitory injunction. There are other prayers also in alternative. The plaintiffs have pleaded in the plaint that they came to know about the existence of wrong entry in Feb. 1984 when the land was sold to defendants No.1 to 4 and they started interfering on the suit land alongwith other defendants. The plaintiffs have not challenged any specific order. The Article 58 of the Limitation Act provides limitation of three years for obtaining any other declaration and the period starts when the right to sue first accrues. The Section 46 of the Himachal Pradesh Land Revenue Act, 1954 also provides, if any person considers himself aggrieved as to any right of which he is in possession by an entry in a record of rights or in a periodical record, he may institute a suit for a declaration of his right under Chapter VI of the Specific Relief Act, 1963. It is the case of the plaintiffs that they came 8 to know the wrong entry in February, 1984. It is not the case of the plaintiffs or even of defendants that the plaintiffs were aware of the change of revenue entry prior to February, 1984. A person can be aggrieved only when he is aware of the fact against which he can be stated to be aggrieved. In these circumstances it can be safely assumed that plaintiffs were aggrieved against the entry only in February, 1984. The suit was filed on 6.4.1984. 12. PW-1 Des Raj has stated that the suit land is 5 ¼ kanals and is in their possession. Their father was tenant on this land. They were never dispossessed. They had purchased 1 ¼ kanals land out of this land, his father died in the year 1980. At the time of settlement entry of self possession was made by owners in the absence of his father and without his consent. Bidhi Chand defendant was the patwari in the settlement and he managed wrong entry in February, 1984. The defendants started interfering on the suit land and at that time they came to know about the wrong entry. In cross-examination he has denied that this land was partitioned and the possession was given in partition. DW-1 Bidhi Chand in his statement has admitted that he had been patwari for the last 12-13 years and he also worked in the settlement. He has stated that they never evicted Riju Ram who died in the year 1980. The suit of the plaintiffs is for declaration that they are owners in possession of the suit land. The plaintiffs have not challenged any specific order, they have sought declaration regarding wrong revenue entry and according to PW-1 the plaintiffs came to know about the wrong revenue entry in February, 1984, the suit was filed in April, 1984. Hence the suit is within limitation. The substantial question of law No.2 is decided against the appellants. 13. The substantial questions of law No.3,4 and 5 are taken up together as these substantial questions of law can be dealt with conveniently collectively. Ex.P-4 is the jamabandi of suit land for the year 1963-64 in 9 which Riju Ram has been shown in possession of the suit land as non- occupancy tenant , Ex.P-3 is the jamabandi for the year 1968-69 in which again Riju Ram has been shown in possession of the suit land as non- occupancy tenant, Ex.P-2 is the Missal Haquiat for the year 1972-73 wherein during settlement the suit land has been shown in possession of the owners. Ex.P-1 is the jamabandi of the year 1981-82 again showing the suit land in possession of the owners. No doubt presumption of truth is attached to later revenue record but before that it has to be shown that the later revenue record showing change is based upon some order or explanation showing the change. 14. It has come on record that before settlement Riju Ram father of the plaintiffs was recorded as non-occupancy tenant on the suit land. It is also the case of the plaintiffs that they had purchased only a small portion of their tenancy land from the owners and on remaining land they remained as tenants. It appears during settlement the legal and factual position with respect to ownership and tenancy land of the plaintiffs was not understood properly by the settlement staff and they had committed an error by deleting the entry of tenancy of Riju Ram on suit land during settlement. The settlement staff had erred in erasing the entry of Riju on the suit land which he was holding as non-occupancy tenant. It is no body’s case that after the purchase by Riju of a portion of the tenancy land from owners he surrendered his possession on remaining tenancy land. Thus, in the Ex.P-2 missal haquiat for the year 1972-73 the name of Riju from the column of possession was wrongly deleted. The revenue record thereafter continued on the basis of missal haquiat Ex.P-2, but once the change in missal haquiat Ex.P-2 so far Riju was concerned was found to be wrong, the subsequent revenue record based upon missal haquiat Ex.P-2 carry no presumption of truth in favour of the defendants. 10 15 PW-1 Des Raj has denied that the suit land was partitioned. He has shown his ignorance that Riju Ram was party in the partition proceedings. Partition order dated 3.7.1976 has not been placed on record. Riju Ram died in the year 1980. The learned Addl. District Judge has recorded a finding that the entries showing the defendants or their predecessor-in-interest in the column of possession as owners are null and void whereas plaintiffs or their predecessor-in-interest was entitled to be recorded and to be shown in possession 1/12 share as owners and 11/12 share in the capacity of non-occupancy tenant on payment of rent. It has also been held by learned Addl. District Judge that the plaintiffs have assailed and proved that no opportunity of being heard was provided to them or their predecessor-in-interest, when the order dated 3.7.1976 was passed by Assistant Collector Ist Grade. In Chhuhniya Devi vs. Jindu Ram 1991(1)SLC 223, it has been held that Civil court has jurisdiction where it is found that the statutory authorities had not acted in conformity with the fundamental principles of judicial procedure or where the provisions of the Act had not been complied with. The learned Addl. District Judge has recorded a finding of fact that plaintiffs have proved that no opportunity of being heard was provided to them or their predecessor-in-interest by the Assistant Collector Ist Grade in the partition proceedings. In these circumstances defendants cannot take shelter of jurisdiction on the basis of partition proceedings to deprive the plaintiffs of the relief prayed by them in the suit which they have proved. It is fundamental principle in every judicial or quasi judicial proceedings to give an opportunity of hearing to the other side unless it is specifically excluded by some provisions having force of law. In these circumstances, the alleged partition proceedings cannot take away jurisdiction of civil court to grant relief to the plaintiffs when Riju Ram predecessor-in-interest of the plaintiffs was not given an opportunity of 11 hearing. The defendants have not rebutted the presumption to the jamabandies Ex.P-4 and Ex.P-3. 16 The plaintiffs have filed the suit for declaration and possession and permanent prohibitory injunction. They have also prayed alternative relief as noticed above. It has not been shown by the defendants how the civil court has no jurisdiction for determining the dispute for granting the relief prayed by the plaintiffs. The claim of the suit is exclusively tried by the civil court. Hence the suit was rightly tried and held to be within the jurisdiction of civil court. It is settled principle of law that in second appeal evidence can not be re-appreciated. The learned counsel for the appellants has failed to point out that the conclusion drawn by the learned Addl. District Judge is based upon misconstruction, mis-appreciation of evidence. It has not been pointed out that any material piece of evidence has been ignored by learned Addl. District Judge. The inference drawn by the learned Addl. District Judge from the material on record emerges from the evidence. The substantial questions of law No.3,4 and 5 are decided against the appellants. There is no merit in the appeal. 17. No other point was urged. 18. The result of the above discussion, appeal fails and is accordingly dismissed with no order as to costs. April 30, 2010 (Kuldip Singh), (sks) Judge.