HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 260 of 2000 Decided on: 22.7.2010 Soma Devi and others ………Appellants. Versus Duni Chand ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellants: Mr.Rajneesh K. Lal, Advocate. For the respondent: Mr.Vikram Thakur, Advocate. V.K. Ahuja, J.(Oral): This is a regular second appeal filed by the appellants under Section 100 of the CPC against the judgment and decree, dated 1.4.2000, passed by the learned District Judge, Hamirpur, H.P., vide which he reversed the findings of the learned Sub Judge Ist Class(2), Hamirpur, dated 1.10.1992, decreeing the suit of the appellants for declaration and injunction. 2. Briefly stated the facts of the case are that the appellants, hereinafter also referred to as the plaintiffs, filed a suit for declaration and possession that the land comprised in the khasra numbers, as detailed in the plaint, measuring 17 kanal 19 marla, was owned by the plaintiffs, who are the sole owners in possession of the land in dispute. The entry in the column ______________________________ Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - of possession in the name of Shiv Ram, son of Gurdwaru, father of the plaintiff and grand father of defendant, is entirely erroneous and baseless. It was also alleged that Shiv Ram had died on 10.4.1962. The suit land originally belonged to Smt.Parsino Devi, widow of Tehku, who was a collateral of the plaintiffs, who died on 3.7.1985. The plaintiffs had succeeded to the suit land on her death on the basis of the Will in their favour. The entries in favour of Shiv Ram showing him in possession were challenged since he was already dead for the last 27 years. It was also alleged that the defendant on the basis of the mutation No.353 attested in his favour are threatening to interfere in the possession of the plaintiffs, hence the suit filed by the plaintiffs. 3. Defendants contested the suit pleading that the suit land is shown in the ownership and possession of the plaintiffs and the defendant in equal share. The mutation in the year 1989 was rightly attested in his favour since Shiv Ram was the tenant and the father of the defendant and the plaintiffs were the real brothers and the mutation was rightly attested by AC IInd Grade accordingly after the death of Shiv Ram. The land in question was in possession of shiv Ram as a tenant and after his death, it was inherited by the plaintiffs and the defendant in equal shares, as such, the suit is liable to be dismissed. 4. On the pleadings of the parties, the following issues were settled by the learned trial Court: “1. Whether the plaintiff is sole owner in possession of the suit land as alleged? OPP - 3 - 2. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP 3. Whether the plaintiff has no cause of action? OPD 1A Whether entry in the column of possession in the name of Shiv Ram is false, wrong, fictitious and baseless? OPD 3-A. Whether the plaintiff is entitled for the decree of possession of the suit land by way of prayer (B) in the amended plaint? OPP 4. Relief.” 5. Parties led their evidence and the learned trial Court vide its impugned judgment decreed the suit of the plaintiffs for declaration and permanent injunction as well as for possession in their favour and as against the defendant. On appeal, those findings of the learned trial Court were reversed by the learned District Judge. Being aggrieved, the plaintiffs have filed by the present appeal. 6. I have heard the learned counsel for the parties and have gone through the record of the case. 7. The appeal was admitted on the following substantial questions of law: “1) Whether in the facts and circumstances of the case, the lower Appellate Court was right in holding that the defendant was tenant of the suit property though it was not admitted by the plaintiffs and no issue was framed to that effect? 2) Whether in the facts and circumstances of the case, the lower appellate Court has committed an error by misconstruing documentary evidence on record as also statements of plaintiffs witnesses and defendant witnesses?” 8. In view of the admission of the appeal on the above substantial questions of law, there has to be reappraisal of evidence by this Court since the findings were reversed by the learned Appellate Court. On appraisal - 4 - of the judgment passed by the learned trial Court, it is clear that the learned trial Court had referred to the copy of missal hakiat Ext.P-3 for the year 1960-61 showing the ownership and possession of Shiv Ram and Bhagat Ram in equal shares. From the remarks column, it was also clear that mutation of inheritance of Shiv Ram bearing No.789 was sanctioned in favour of his sons Amar Nath, Thakur Dass, daughters Thakuri Devi, Kailasho Devi, Banto Devi and Smt.Sartajo Devi, widow of Shiv Ram. Ext.P-6, which is the copy of jamabandi for the year 1981-82, shows the suit land in the ownership of Smt.Parsino and Shiv Ram was shown in possession as non-occupancy tenant. It is clear from a perusal of the record that Shiv Ram had died on 10.4.1962 and in so far as his own property is concerned, vide mutation No.789, the same was inherited by his legal representatives. However, in regard to the suit land, his name continued in the revenue record as a tenant right upto the jamabandi for the year 1986-87 and thereafter on the basis of mutation No.1535, it was sanctioned in favour of the defendant. Once Shiv Ram was already dead as a tenant, prima facie, these entries were wrong and his name was shown upto the year 1989, for about 27 years, as tenant. There was no necessity of getting the revenue entries corrected since these entries were void ab initio and, therefore, entry showing Shiv Ram as tenant cannot be relied. On the basis of the documentary evidence and the statements of the defendant’s witnesses, namely, DW-2 Batan Singh and DW-3 Roshan Lal, who also admitted that Shiv Ram - 5 - was not in possession of the suit land, the learned trial Court had concluded on the basis of the documentary evidence that Shiv Ram was never inducted as a tenant and was never in possession of the suit land. Therefore, the entries showing him as a tenant were prima facie wrong. Smt.Parsino Devi was entered as owner and by way of Will, she has bequeathed the suit land in favour of the plaintiffs, who were owners in possession and were rightly held entitled to the decree as claimed by them. 9. The learned Appellate Court had relied upon the judgment in Karam Chand and another versus Kewal Krishan and others, 1985 P.L.J. 581, and had observed that in view of this judgment, the tenancy rights cannot be willed away. However, this decision was not attracted to the present facts since tenancy rights were never willed away by Shiv Ram, but ownership rights were willed away by Parsino Devi, who was recorded as owner. The plaintiffs never admitted the tenancy of Shiv Ram and on the basis of the evidence, the learned trial Court rightly held that the plaintiffs were entitled to the reliefs and such findings were reversed by the learned Appellate Court on the above judgment, the facts of which were not attracted to the present case. 10. From the above discussion, it is clear that the learned trial Court had considered the oral as well as documentary evidence and had come to a right conclusion that the plaintiffs were entitled to the relief claimed by them and those findings were wrongly set aside in appeal by - 6 - the learned District Judge, which findings are liable to be set aside. The judgment passed by the learned trial Court is, therefore, restored and that of the learned District Judges is set aside. The appeal filed by the appellants is accordingly allowed. However, there are no orders as to costs. July 22, 2010. (V.K. Ahuja), (TILAK) Judge.