IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 304 of 2002 alongwith CMP No. 586 of 2002 and CMP No. 399 of 2008. Judgment reserved on : 20.11.2009. Date of decision : 28.12.2009. Kaushalya Devi …Appellant. Versus Roshan Lal ....Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Appellant : Mr. Dushyant Dadwal, Advocate. For the Respondent : Mr. Dharamvir Sharma, Advocate. Kuldip Singh , Judge This appeal has been filed by defendant against judgment dated 20.4.2002 passed by learned District Judge, Mandi in Civil Appeal No. 114 of 1999 affirming judgment, decree dated 1.10.1999 passed by learned Sub Judge 1st Class, Joginder Nagar, in Case No. 3 of 1995. 2. The facts, in brief, are that Roshan Lal had filed a suit for permanent prohibitory injunction against the appellant from interfering in his possession on land comprised in khasra No. 1388 min, khewat No. 224 min, Khatauni No. 428, measuring 0-4-0 bighas 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 situated in mauza Passal, Pargana Ahju, Tehsil Joginder Nagar, District Mandi. It is the case of the respondent that conferment of proprietary rights is automatic under the H.P.Tenancy and Land Reforms Act, 1972 (for short ‘Act’), his father who was non-occupancy tenant on suit land became owner of the suit land automatically after the enforcement of the Act even though it was not given effect in the revenue record. The father of the respondent had died and respondent has succeeded him. Therefore, the respondent has become owner in possession of the suit land. In the alternative, the suit of the respondent is that he is in possession of the suit land as tenant. He is in settled possession of the suit land and, therefore, he is entitled to protect his possession. The house of the respondent has been constructed on a portion of the suit land and remaining portion of the suit land is subservient part of the house. The father of the respondent had been paying rent to the landlord. He has also taken the plea that alternatively the tenancy was held under the contract to the contrary regarding payment of rent. The appellant has no right to interfere in the possession of respondent on the suit land. 3. The suit was contested by the appellant by filing written statement in which preliminary objections of maintainability and cause of action were taken. On merits, it was denied that respondent is in possession of the suit land either as owner or tenant. The appellant asserted her possession on the suit land as owner except the portion of the suit land over which the father of the respondent had constructed a house. The appellant had inherited the suit land from her mother’s mother who was poor and helpless lady. The father of the respondent was helping her in old age and therefore, out of love and affection 3 mother’s mother of the appellant had given very small portion of the suit land to the father of the respondent for the construction of the house. The respondent has no right, title or interest over remaining portion of the suit land. The revenue entries qua the suit land are not correct and the same are the result of connivance of the father of the respondent with revenue authorities. The respondent on the basis of wrong revenue entries is trying to take forcible possession of the suit land from the appellant. In replication, the respondent re-asserted his case. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is owner in possession of the suit land as alleged? ..OPP. 2. Whether the defendant is interfering in the ownership and possession of plaintiff over the suit land as alleged? ..OPP. 3. Whether the revenue entries showing the plaintiff as tenant over the suit land are wrong, null and void as alleged? ..OPP. 4. Relief. The issue No.1 was answered by returning the finding that respondent is in possession but not owner of the suit land. Issue No.2 was answered in affirmative, while issue No.3 in negative and the learned trial Court decreed the suit as per operative portion of the judgment on 1.10.1999. In appeal, the learned District Judge has affirmed the judgment, decree dated 1.10.1999 of the trial Court. The appeal has been admitted on the following substantial questions of law:- 1. Whether the judgment and decree of the learned courts below is vitiated by holding that jamabandis are documents of title granting right to the plaintiff? 4 2. Whether the alternate plea advanced that the land had been given “Bila Lagan Bawja Dharmarth” (that is to say no rent payable as land has been given in lieu of charity) had not been established by cogent evidence? 4. I have heard the learned counsel for the parties and have also gone through the record. The learned counsel for the appellant has submitted that the jamabandi is not a document of title. The two courts below have wrongly taken the jamabandi as document of title in decreeing the suit of the respondent, who has failed to prove his title on the suit land. It has also been submitted that respondent has failed to prove how his father and after his father the respondent was put in possession of the suit land. The learned counsel for the appellant has submitted that appellant may be permitted to bring on record copy of rapat rozenamcha No. 356 dated 4.4.1966 showing that there was no change in possession of the land. It has been submitted that rapat No.356 dated 4.4.1966 falsifies the claim of the respondent on the suit land. The learned counsel for the respondent has submitted that the two courts below have affirmed the possession of the respondent on the suit land on the basis of facts, no substantial question of law is involved in the appeal which requires determination by this Court. The application for leading additional evidence to place on record rapat No. 356 dated 4.4.1966 suffers from lack of necessary averments which are required for leading additional evidence. It has not been explained in the application why the additional evidence now sought to be produced, was not produced in the trial Court or in the lower appellate 5 Court. The learned counsel for the respondent has supported the impugned judgment, decree. 5. The application being CMP No. 586 of 2002 for additional evidence is taken first for consideration. The appellant in the application has submitted that after inspection of the record, it was found that entry which was made in the revenue record is the outcome of fraud. According to rapat No. 356 dated 4.4.1966, there has been no report regarding change of the possession of the land or otherwise. It has been submitted that this falsifies the case of the respondent that his father was tenant on the suit land. It has also been submitted that the evidence which is to be brought on record is by way of Nakal Roznamcha. The subsequent enteries in the revenue record are based upon fraud. The parameters for allowing application for additional evidence are provided in Order 41 Rule 27 C.P.C. The application for additional evidence filed by the appellant is silent about due diligence on the part of the appellant. It has not been stated in the application that appellant despite due diligence was not aware of the rapat No. 356 dated 4.4.1966 which she now intends to place on record by way of additional evidence. The application is also silent when appellant came to know about the rapat No. 356. There is no explanation in the application why such application was not filed in the lower appellate court. The application lacks material averments which are required to be alleged in an application under Order 41 Rule 27 for leading additional evidence. The appellant has not made out a case for additional evidence, hence the application for leading additional evidence is rejected. 6 6. The substantial questions of law No.1 and 2 are inter- connected, therefore, both substantial questions of law are taken up together for disposal. The suit was filed on 3.1.1995. Ex.PA is the copy of jamabandi 1988-89 showing khasra No. 138 owned by Kaushalya Devi and possessed by Kharetu Ram. It is the case of the respondent that Kharetu Ram his father was earlier tenant on the suit land and after the death of Kharetu Ram respondent succeeded his father and in this way respondent is owner in possession of the suit land. The two courts below have not accepted the plea of respondent that either his father or he remained tenant on the suit land, but the two courts below accepted the possession of respondent on suit land and restrained appellant from interfering in possession of respondent on suit land. 7. PW-1 Roshan Lal has stated that earlier his father remained in possession on the suit land for about 35 – 36 years, his father has died. The land was given to his father by Chintu owner, who used to pay Galla (rent) to the owner. He has also stated that his father had constructed a house on some portion, the land has been given to him through will. He has also placed on record copy of jamabandi Ex.PA. PW-2 Shesh Ram has stated that the disputed land is 4 biswas which Kharetu Ram father of the plaintiff used to cultivate, now the plaintiff cultivates the suit land. The house was constructed by the father of plaintiff on the suit land. In cross-examination, he has denied the suggestion that possession of the plaintiff is only on the house and not on the remaining land. He has further stated that he used to work as a tailor with the father of the plaintiff. 7 8. DW-1 Kaushalya Devi has stated that disputed land is 1 ½ bigha which came to her from her grand mother. On the spot, the house was constructed by her grand-mother. The father of the plaintiff used to work as a tailor. The father of the plaintiff used to visit her grand-mother and requested her to give him some land for construction of shop which was given to him. She has stated that suit land is in her possession. The plaintiff is not in possession of the house. In cross- examination, she has stated that shop was constructed 27 – 28 years ago. She has denied that 4 biswas of land was given by her grand- mother to Kharetu. 9. DW-2 Thakur Singh has stated that he has seen the disputed land. The house of Kaushalya and Roshan Lal is on this land. The plaintiff is not in possession of this land. DW-3 Attar Singh, Patwari, Passal has stated that the name of father of plaintiff was entered on khasra No. 1378 in Girdwari 1969-70 which has been destroyed. In cross-examiantion, he has stated that in the jamabandi entry is made on the basis of khasra girdwari. DW-4 Hari Krishan, Patwari Halqua has stated that he does not know how the name of Kharetu was entered. 10. The two courts below have found respondent in possession of the suit land. The evidence led by the appellant has also established the possession of respondent on constructed portion out of the suit land. The question is with respect to possession of respondent on the remaining suit land. Ex.PA jamabandi 1988-89 indicates house on entire khasra No. 1338 min measuring 4 biswas. The presumption of truth attached to jamabandi has not been rebutted by the appellant. On the contrary, the evidence led by the appellant supports the case of 8 the respondent that he is in possession of the suit land. DW-3 Attar Singh, Patwari has stated that entry in the name of father of plaintiff Kharetu in the khasra-girdwari of the suit land was made in 1969-70. The entry in the jamabandi is made from khasra-girdwari. The Courts below have not held title of the suit land in favour of the respondent. The two courts below have held that respondent is in possession of the suit land. The jamabandi is not the document of title but presumption of truth is attached to jamabandi which has not been rebutted in the present case by appellant. The Courts below have not found the respondent or his father as tenant on the suit land. The appellant was simply in possession of the suit land. The appellant/defendant herself has stated in her statement that some land was given to the father of the plaintiff for construction of shop. The two courts below have rightly appreciated the material on record. The findings of possession of respondent on the suit land are findings of fact which cannot be disturbed in second appeal unless the findings are perverse or based upon no evidence, but the appellant has failed to bring her case within those parameters. The substantial questions of law No. 1 and 2 are decided against the appellant. There is no merit in the appeal. 11. No other point was urged. 12. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. 13. The applicant /appellant has filed CMP No. 399 of 2008 for demolishing the unauthorized construction and detaining respondent in civil imprisonment and initiating proceedings under the contempt of Courts Act for disobeying the order dated 10.7.2002 read with order dated 15.11.2002 passed in CMP No. 584 of 2002. It has been 9 alleged that vide order dated 10.7.2002 the operation and execution of the judgment, decree dated 20.4.2002 was stayed till further order, on 15.11.2002 this Court directed the parties to maintain status quo as existed on that date with respect to nature and possession of suit property till the pendency of the appeal. The respondent in violation of interim order started raising construction by digging disputed land in February, 2008. The applicant through her attorney requested the respondent not to raise construction on the disputed land but respondent refused to obey the court order. On 25.2.2008 the respondent again started digging work on the suit land. The police was informed but the respondent did not stop work on the disputed land. In these circumstances, application has been filed for proceeding against the respondent for violating order dated 10.7.2002 read with order dated 15.11.2002 passed in CMP No. 584 of 2002. 14. The respondent has filed the reply and denied the allegations. It has been submitted that respondent had only made the flow of water good. The water due to heavy rain was damaging the property and respondent only regulated the flow of water. The application has been filed in order to harass the respondent. The respondent has filed supplementary affidavit dated 5.3.2009 and has stated that applicant had sold her land vide sale deed dated 9.5.2000. Ramesh Chand, General Power of Attorney holder of applicant in reply to counter affidavit has stated that applicant has transferred adjoining land to him. The question involved in the present application is the disobedience of order dated 10.7.2002 read with order dated 15.11.2002. The applicant has stated that the respondent has violated the orders. But the respondent has denied the allegations on affidavit. 10 There is no worth-believing evidence on record to show that respondent in fact has disobeyed the order dated 10.7.2002 read with order dated 15.11.2002. The two photographs attached with the application indicate a house in the dilapidated condition and in two other photographs, one kaccha channel has been shown. These photographs do not show that any construction has been raised. There is no evidence that these photographs are of which land. The applicant has failed to establish disobedience of order dated 10.7.2002 read with order dated 15.11.2002. Accordingly, the application is dismissed. ( Kuldip Singh ), December 28, 2009, Judge. (GR)