Whether reporters of local papers may be allowed to see the judgment? Yes, IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.196 of 1997. Judgment reserved on : 01.08.2008. Dated of Decision: August 26, 2008. --------------------------------------------------------------------------------------------------- Prem Dass. ……… Appellant. Versus Roshan Lal and others. …..… Respondents. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? No. For the Appellant : Mr. Bhupender Gupta, Sr. Advocate with Mr. Janesh Gupta, Advocate. For the Respondents : Ms. Vidushi Sharma, Advocate, vice Mr. R.K. Sharma, Advocate, for respondent No.1. None for other respondents. Surinder Singh, J: The appellant-plaintiff failed in both the courts below, therefore, filed the present Regular Second Appeal. This appeal was admitted on the following substantial questions of law:- “1. Whether the Agreement Exhibit PW-4/A contains admissions of the party and were binding on them? Could such compromise containing such admissions be ignored merely on the ground that the Authorities under Consolidation Act did not act upon the same? 2. Whether the Exhibit PW-3/A convey the title to the plaintiff of the ownership rights of Smt. Basanti who was admittedly the owner, when the due execution and attestation of the Will was duly established which fact was not assailed by the defendant-Respondent No.1, could the conveyance of such rights by Smt. Basanti be 2 said to be hit by provisions of Section 113 of the H.P. Tenancy and Land Reforms Act? 3. Whether the courts below were wrong in acting upon the undue surrender of tenancy rights by Shri Changa who admittedly was a tenant under Smt. Basanti? What was the effect of execution of Exhibit PW-4/A by Smt. Basanti making the gift of some of the property in favour of the parties according to the shares mentioned therein?” To understand the controversy inter-se the parties, it shall be relevant to draw a pedigree table of the parties to the suit, which is as under:- ADMITED FACTS: Chinga was non-occupancy tenant under Basanti, with respect to her entire land. Basanti gifted around 14 bighas of land to the parties to the suit i.e. the plaintiffs including the proforma defendant half share and to the defendant half share, vide sale deed Ex.PW4/A, registered on 7.3.1958. DISPUTED FACTS & CASE OF THE PLAINTIFFS: On the execution of the gift deed, it is alleged that the remaining tenancy land was left by Chinga in favour of Basanti and the defendant Roshan Lal got himself separated and Chingu @ Changa Bhagat Ram (dead) Roshan Lal (real defendant) Prem Dass (plaintiff No.1) Bakil Singh (Plaintiff No.2) Pala Ram (Plaintiff No.3) Balwant Kumar (Plaintiff No.4. 3 started living separately and cultivated his half share, which came under the gift to him, whereas, the plaintiffs started living with Basanti and cultivated the suit land. However, on 23.3.1973, Basanti executed a Will Ex.PW3/A in favour of plaintiffs and proforma defendant. It is further alleged that when Chingu died in the year 1965, defendant Roshan Lal got himself recorded as non-occupancy tenant qua half share of the suit land left by Chinga to Basanti and acquired the proprietary rights under the H.P. Tenancy and Land Reforms Act, in connivance with the revenue officials. During consolidation proceedings, the Director of Consolidation is alleged to have wrongly decided the matter against them and it is alleged to be without jurisdiction. It was also the case of plaintiffs that the execution of gift deed Ex.PW4/A and the Will Ex.PW3/A are the documents showing that the defendant and proforma defendant entered into the compromise whereby the defendant admitted the possession of the plaintiffs over the land measuring 8 bighas 19 biswas. Alternatively, the plaintiff pleaded the adverse possession and sought the relief of declaration to the effect that the plaintiffs are owners in possession as co-sharer and holding the suit land jointly with proforma defendants and the mutation acquiring the proprietary rights in absence of the plaintiff, was in connivance with the revenue staff thus, not binding upon them and also that the defendant Roshan Lal was not entitled for the partition and to seek possession from the consolidation staff as the question of title could not have been decided by him and the Director, thus all the orders passed were without 4 jurisdiction and sought the possession of the land measuring 7 bighas 6 biswas comprising in Khasra Nos. 1422,1435,1635 and 1203, consequently, prayed for the relief of injunction to restrain the defendant from causing any interference in the suit land. CASE OF THE DEFENDANT: The suit was resisted and contested by the defendant Roshan Lal and he questioned the maintainability of the suit, inter-alia disputed the jurisdiction of the civil court vis-à-vis raised the objections of valuation, cause of action, limitation etc, in the preliminary objections and on merits, denied that the plaintiffs are owners in possession of the suit land. It was averred that the plaintiff only inherited the ownership of the land by illegal means. He alongwith the plaintiff and proforma defendant had inherited the suit land as non-occupancy tenant from Chingu, his father. He claimed himself to be the tenant of Basanti Devi and having acquired the proprietary rights in the year 1975 alongwith the plaintiffs and proforma defendant under the Tenancy Act. He specifically denied that his father Chingu had surrendered the suit land in favour of Basanti Devi or that the plaintiffs and proforma defendant had ever cultivated the suit land. The compromise as alleged is denied and alternative plea of adverse possession as claimed by the defendants is also denied. The plaintiff filed the replication and denied the preliminary objections, however, reasserted the even para of on merits. 5 ISSUES BEFORE THE TRIAL COURT: The learned trial court framed the following issues to resolve the controversy:- “1. Whether after the gift deed dated 7.3.1958 Chinga left the suit land in favour of Smt. Basanti and, thereafter, the suit land was cultivated by the plaintiffs alongwith the proforma defendants who later on became joint owners by virtue of gift as well as by way of Will dated 2.3.1973, if so, to what effect? …OPP. 1-A. Whether the defendant entered into a compromise in which the defendant admitted that he is not in possession of the suit land and left8-19 bighas of land in favour of the plaintiffs, if so, to what effect? …OPP. 1-B. Whether the order of Director Consolidation is without jurisdiction? …OPD. 1-C. Whether the plaintiffs have become owners by virtue of adverse possession of the suit land in the alternative? …OPP. 2. If issue No.1 is proved in the affirmative, whether defendant No.1 was a tenant of Basanti and later on acquired proprietary rights in 1975? …OPD. 3. Whether the suit is not maintainable in the present form? …OPD. 4. Whether this court has no jurisdiction to true the suit ? …OPD. 5. Whether the suit has not been properly verified? …OPD. 6. Whether the suit property has not been valued properly? …OPD. 7. Whether the plaintiffs have no cause of action to file the suit? …OPD. 8. Relief. 6 FINDINGS ON ISSUES BY THE TRIAL COURT AND CHALLENGE IN APPEAL BEFORE THE DISTRICT JUDGE: Findings on issues No.1, 1-A, 1-B, 1-C,2,3 and 7 were returned in favour of the defendant and qua issues No.5 and 6 against the contesting defendant. Consequent upon these findings, the suit of the plaintiff was dismissed. Feeling aggrieved and dissatisfied by the impugned judgment, Prem Dass plaintiff filed an appeal in the court of District Judge against the contesting defendant impleading Bakil Singh, Pala Ram plaintiffs as proforma defendants with original proforma defendant Balwant Kumar. The learned District Judge reappraised the evidence on record but did not find any favour in the contentions raised in the appeal and submission made thus dismissed the appeal of the plaintiffs, a such, the instant second appeal has been filed, which was admitted on the above substantial questions of as per the contentions raised in appeal. FINDINGS ON SUBSTANTIAL QUESTIONS OF LAW IN THIS APPEAL: I have heard the learned counsel for the parties and have gone through the record, to appreciate the rival contentions. From the above facts, it is clear that there is no dispute qua the gifted property. The apple of discord is the remaining tenancy land which is alleged to have been relinquished/ surrendered by Chingu in favour of Basanti which according to plaintiffs it came to them by way of will dated 2.3.1973 of Bansati, over which the defendant is alleged to have got incorporated his name as tenant and acquired the proprietary 7 rights. But on the perusal of the record I did not find any legal evidence with respect to surrendering the remaining part of the tenancy land either in the gift deed Ex.PW4/A or in Will Ex.PW3/A. In fact qua the remaining part, she remained the owner and Chinga as non-occupancy tenant. After the death of Chinga, the tenancy was inherited by his son Roshan Lal defendant to the extent of ½ share and other half by the plaintiffs and proforma defendant being the sons of Bhagat Ram the predeceased son of Chinga. The suit land continued to be shown in the revenue record in the names of parties, right from the death of Chinga. The plaintiffs have no case to take the share of defendant Roshan Lal from his tenancy land, which he inherited to the extent of ½ share from his father. The Will Ex.PW3/A of Basanti in favour of the plaintiffs cannot improve their case in any manner. Otherwise also the Will Ex.PW3/A dated 2.3.1973 only says that after her death her moveable and immoveable property wherever situated would go to the plaintiffs and proforma defendant, but this would neither mean that the tenancy land qua the share of Roshan Lal would return to the legatee nor it is permissible under Section 113 of the H.P. Tenancy and Land Reforms Act as any transfer of tenancy land operates as a bar and the case of the plaintiffs does not fall within its exception and the tenancy rights would not get effected by the change in ownership. Thus, there is no effect of execution of gift deed Ex.PW4/A by Basanti or the Will Ex.PW3/A aforesaid on the tenancy rights of the defendant, rather the disability which was attached to get the proprietary rights being a widow got vanished. 8 Therefore, for the foregoing reasons, I do not find that the revenue officials and the courts below have committed any error in rejecting and dismissing the claim of the plaintiffs. Otherwise also the concurrent findings of facts arrived at by the courts below are borne out from the record cannot be interfered with in second appeal. Therefore, the appeal is dismissed with costs throughout. August 26, 2008. (Surinder Singh) (Pds) Judge.