IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA 133 of 1999. Judgment Reserved on May 7, 2008. Date of decision 28.5.2008. Nirmala Devi and others … Appellants. Versus Bhagwanti Rai & another … Respondents. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the appellants Mr. S.D.Gill, Advocate. For the respondents. Mr. H.K.Bhardwaj, Advocate. Dev Darshan Sud, J. This is the plaintiff’s second appeal against the judgment and decree of the learned two Courts below dismissing the suit preferred by them for declaration to the effect that the plaintiff was the owner in possession of the suit land as described in the plaint. Plaintiff Shri Harbans Singh who died during the pendency of the suit prayed for a decree 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - of declaration that he was the owner in possession of the suit land and consequent relief of permanent prohibitory injunction against the defendants on the basis of title claiming conferment of proprietary rights under the provisions of Section 104 of the H.P. Tenancy and Land Reforms Act (hereafter referred to as the Act). It was his case that the revenue officers, in connivance with the defendants had altered the revenue record showing wrong entries of ownership etc. Defendants contested the suit on a number of grounds including the fact that defendant No. 2 was a bonafide purchaser of the land and that the plaintiff had himself sworn an affidavit in revenue proceedings stating that he was not in possession of the suit land in any capacity. The learned trial Court framed seven issues, two crucial issues being whether the plaintiff is the owner of the suit land and on this basis whether he is entitled to the reliefs prayed for. These were decided in favour of the defendants and against the plaintiffs. It was also held that the plaintiff did not have any locus standi to file the suit and he was estopped from praying for the reliefs as prayed for in the plaint. - 3 - To arrive at this conclusion, the learned trial Court considered the evidence of the plaintiff including the order dated 18.2.1976 Ex. P-1 passed by the Land Reforms Officer in case titled Bhagwant Rai versus Harbans Singh, jamabandis and missal hakiyat for the period upto 1981. Defendant No. 2 Dilawar Singh appeared as his own witness and proved on record the sale deed through which he claimed title and more importantly certified copy of the order dated 8.7.1982 Ex. D-6 passed by the Assistant Collector IInd Grade in case No. 168/1982, titled Dilawar Singh versus Harbans Singh and Ex.D-7, certified copy of order dated 16.12.1982/16.12.87. On appreciation of the entire evidence, the trial Court concluded that order Ex.D-6 unequivocally established that on the application for correction of revenue entries, the Assistant Collector IInd Grade had issued notices / summons to Harbans Singh but he did not appear despite service. An affidavit filed by him stating that he had surrendered his tenancy before 1969 and before the commencement of the Act was proved on record. The learned appellate Court has affirmed the findings by reappreciating the evidence on record and holding that Bhagwant - 4 - Rai, defendant No. 1 had become owner in possession of the land in 1969 and lawfully alienated the same in favour of defendant No. 2 Dilawar Singh. On the question of possession, the learned Courts below have not believed the statement of Joginder Singh, PW-1 holding that his statement was contrary to the record. In this appeal, the appellant has assailed the findings of the learned Courts below. This appeal was admitted on 7.5.1999 on the following questions: 1. Whether both the learned courts below erred in appreciating the provisions of law applicable, pleadings of the parties and evidence adduced by them in its true and correct perspective, thereby vitiating the impugned judgments and decrees? 2. Whether judgments and decrees passed by both the courts below stand vitiated for want of framing of proper issues, specifically with regard to the alleged affidavit? 3. Whether findings returned by both the courts below stand vitiated for misreading and misappreciated the contents of the alleged - 5 - affidavit, which has not been produced on the records of the courts below? 4. Whether both the learned courts below misread and misappreciated Exts. D-5 and D-7, thereby vitiating the impugned judgments and decrees? I have heard the learned counsel for the parties and gone through the record of the case. Learned counsel appearing for the appellants has urged that the judgment of the Courts below requires to be set aside on the questions of law on which the appeal was admitted. On the first three questions, learned counsel has submitted on the interpretation of oral and documentary evidence on record. On the fourth question, the two documents Exts. D-5 and D-7 which according to the learned counsel have been misread, a number of submissions have been made. In second appeal, exercising power under Section 100 of the Code of Civil Procedure (hereinafter referred to as the Code), this Court cannot reappreciate the entire evidence unless some specific portion of the evidence, either oral or documentary, is pointed out which has been misread and on which an interpretation has been reached by the learned - 6 - Courts below, which no reasonable man can arrive at or which cannot reasonably flow from the established facts. This jurisdiction cannot be extended to reappreciation of the entire evidence on record and to undertake an exercise which is otherwise prohibited by Legislative intent of Section 100 of the Code of Civil Procedure and by numerous decisions of the Supreme Court. In any event, since the appeal was admitted, the entire evidence was reconsidered. On question No. 2 I have not been able to persuade myself that proper issues had not been framed. The parties went to trial with their eyes open and led evidence on issues as framed by the Court. The plaintiff had ample opportunity to petition the trial Court under Order 14 Rule 5 of the Code for reframing of issues or asking for additional issue(s) and cannot now in second appeal urge that proper issues have not been framed. The effect of the affidavit to which reference has been made by the two Courts below in the judgment and which forms the basis of the two statutory decisions Exs. D-6 and D-7 both dated 8.7.1982/16.12.1987 could have been disproved by summoning the record from the revenue authorities or even challenging - 7 - these orders in appeal or revision before the revenue Courts or in cross examination. There was no element of surprise as what was being proved was the orders passed by revenue officer(s). This course having been abandoned, the plaintiff cannot claim any prejudice or surprise at the trial when these documents were proved in evidence and the plaintiff had ample opportunity not only to cross examine the witnesses, but also to summon such other evidence to disprove the record maintained by a statutory authority acting under the Land Revenue Laws. On question No. 3, all that can be said is that there is no misreading or misappreciation of the contents of any affidavit which has been considered by the Revenue Courts. As would be seen from the contents of documents Exts. D-6 and D-7, two statutory orders passed under law, not only the plaintiff chose to remain absent despite service, but did not challenge the orders either in appeal or revision or even petition the authorities passing orders stating therein that the orders were based on non existent facts. Question No. 4 may be taken as an important question which has been raised referring - 8 - to two documents Exts. D-5 and D-6. Ex.D-5 is against the plaintiff. It is a copy of the missal hakiyat of the suit land for the year 1986-87 showing Dilawar Singh to be in possession as owner and cultivator. This fact does not advance the case of the appellants but goes contrary to their assertion. Two other documents proved on record Exts. D-6 and D-7 may be considered. Ex.D-6 is an order passed in Case No. 168/1982, titled Dilawar Singh versus Harbans Singh, for correction of the girdawari entry. The order specifically holds: “ Es mukadma ka halat es parkar hai ke mutabik darkhasat sayal usna rakba mundarja wala malik bhumi Bhagwant singh say baruye registry number 153 dinak 20-6-81 ko badla may 10000/- Rubaa ea kharid kar lee hai sayal ne apna dawa maa yeh bhe sapasht kiya hai ke harbans singn farik doyam jes ke girdawari bator gair marusi chali ah rahi hai arsa 13 varsh sa chord chukka hai es katha kee pushti harbans singh ke aur sa uska biyan halfia shamil missal hai jes kay anusar harbans singh thek 13 salon say ukat bhumi kee kashat bahak malik chord chukka hai. Niz harbans singh farik dayam ka saman kee itlah kay - 9 - babjuid hazir naa anna es baat kee pushte karta hai vah vastav mai he kashat tarak kar chukka hai ab use es mukadma kee parvahi mai koi eatraj va dilchaspi nahi hai hokum gair marusi harbans singh farik doyam sayal ho chukka hai.” (The facts of this case are that …………………according to the applicant he has bought the land in dispute from the owner Shri Bhagwant Singh vide Registry No. 153 dated 20.6.1981 for a sum of Rs.10,000/-. The petitioner has also stated in his application that Harbans Singh, respondent No. 2, who has been shown as a non occupancy tenant, has surrendered his tenancy for the last more than 13 years ago. In support of this fact, an affidavit of Harbans Singh has been placed on record of the file according to which he has relinquished the tenancy of the land about 13 years back in favour of the owner. A notice of the petition was also sent to the second respondent Harbans Singh who despite receiving the summons, has not appeared in this Court which shows that he has relinquished his tenancy. He has no interest in defending the case…….). - 10 - Ex. D-7 is an order passed by the Naib Tehsildar in Case No. 168/1982, titled Dilawar Singh versus Harbans Singh, for correction of the girdawari entry. The order specifically holds: “ Mool messal par samyahurta duwara parit punravilokan kaa adesh par doono paksho ko saman dawara talab kiya gaya. Biyan harbans singh muzara vaa dilawar singh malik lakhani bandh hoo kar shamil messal kiya jaa chukka hai. Biyan Harbans Singh say yeh sapashat hai kee bhomi jeear behas Dilwar Singh kabza vaa kashat mai hai jes sambandh mai usna shapath patrar bhe diya hai. Jes kee pushtea shepath patroo sa purentya hoti hai.” These portions of the orders have been reproduced in Romanized version with transliteration of the portions. They are clear and unequivocal on the point that Harbans plaintiff has remained absent despite service and the only conclusion which can be drawn is that he is not interested in the proceedings. There is nothing perverse regarding this inference which has been drawn by the revenue Courts and accepted by the Civil Courts. The reason - 11 - for the absence of the plaintiff from the revenue proceedings is that if he had contested them, he would have no defence. Learned counsel has raised an issue and that was that proprietary rights would automatically be conferred upon the plaintiff once it was found that he was in cultivating possession as a tenant. This presumption, according to the learned counsel, was irrebuttable. He places reliance on a decision of this Court in Daulat Ram & others v. State of Himachal Pradesh & others, 1979 Sim. L.C. 215, saying that mere recording of a person as tenant in the revenue record on the appointed day would confer proprietary rights on such a person in accordance with the provisions of Himachal Pradesh Tenancy and Land Reforms Act. The order of the revenue officer is nothing but a formality and recognition of the mandate of the Statute. This plea cannot be accepted as the judgment referred to does not lay down the proposition of law as urged. Subsequently, in Ram Chand versus Jagat Ram and others, 1997 (1) Sim. L.C. 164, this Court had itself held that mandate being clear, yet it is for the party to establish its rights in accordance with law for - 12 - which purpose the Revenue Officer is to conduct an enquiry and not act in a mechanical manner. That is to say a foundation must be laid down for the assertion of right and the facts established before conferment of the proprietary rights. Such an exercise cannot be reduced to a mere clerical formality. The questions of law raised are answered against the appellants and in favour of the respondents, that is to say, the judgment and decree of both the Courts below is neither against law or facts on record, nor has any error of law been committed by both the Courts in interpreting the documents Exts. D-5 and D-7 or even D-6. The appeal is, therefore, dismissed. Pending application(s) shall stand dismissed. There shall be no order as to costs. May 28, 2008 (PC). (Dev Darshan Sud), J.