IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R. S. A. No. 170 of 1998. Decided on : 16.7.2009. ____________________________________________________________ Ramesh Chand …Appellant. Versus Chuhru ….Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Appellant : Mr. N.K.Thakur, Advocate. For the Respondent : None. Kuldip Singh , Judge (Oral ). This appeal has been directed against the judgment, decree dated 3.3.1998 passed by the District Judge, Una in Civil Appeal No. 122 of 1992 reversing the judgment, decree dated 1.9.1992 passed by the Senior Sub Judge, Una in case No. 217 of 1986. 2. The brief facts of the case are that respondent had filed a suit for declaration to the effect that he has been coming in possession of land measuring 13 marlas comprised in khasra Nos. 1301 and 1302, village Lalhari, Sub Tehsil Haroli, District Una previously as tenant-at-will and thereafter as owner under the H.P.Tenancy and Land Reforms Act, 1972, revenue entries in the name of Dina Nath father of the appellant showing him as Gair 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 Morusi Doem are void, unauthorized, illegal, inoperative and not binding on him and for permanent prohibitory injunction. In the alternative, possession of the suit land has also been prayed. 3. The further case of the respondent is that name of Dina Nath predecessor of appellant was wrongly entered as Gair Morusi Doem. He was never in possession nor was he inducted as such. The revenue entries in favour of Dina Nath are wrong, illegal, null and void and not binding on the respondent. Dina Nath on the basis of wrong revenue entries, threatened to interfere in the possession of the respondent on the suit land. In these circumstances, suit was filed. 4. The suit was contested by Dina Nath by filing written statement in which he took preliminary objections of maintainability of the suit for want of impleadment of previous owners, the respondent is not in possession, suit has not been filed on the basis of latest revenue record and the suit is barred by limitation. On merits, it was pleaded by Dina Nath that Raghubir Singh etc. were the owners and father of respondent was tenant under him. Dina Nath was inducted as sub-tenant by the father of the respondent with the consent of landlords prior to 1965-66 on payment of rent not exceeding the land revenue. It was the case of Dina Nath that since then, he had been coming in possession of the suit land. He constructed abadi, installed flour machine and other machines on the suit land. Dina Nath on coming into force of the H.P.Tenancy and Land Reforms Act became the owner of the suit land. The respondent and previous owners ceased to have any right, title or interest in the suit land. The pleas of estoppel and acquiescence 3 were also taken. The ownership of the respondent of the suit land was denied. The plea of under valuation of suit was also taken. It was also pleaded that respondent be restrained from interfering in the possession of Dina Nath. A prayer for dismissal of the suit was made. 5. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff had been non-occupancy tenant in possession of the suit land as alleged? If so, to what effect? OPP. 2. Whether the plaintiff is entitled to the relief of permanent injunction ? ..OPP. 3. Whether the suit is not maintainable? ..OPD. 4. Whether the suit is barred by time? ..OPD. 5. Relief. The issues No. 1 and 2 were answered in negative, under issue No.3 it was held that suit was not maintainable, issue No.4 was answered in affirmative and the suit was dismissed by the Senior Sub Judge, Una on 1.9.1992. In appeal on 3.3.1998, the District Judge, Una reversed the judgment, decree dated 1.9.1992 and respondent was declared owner of the suit land. The appellant was directed to hand over possession of the suit land to the respondent after removing the machinery and structure raised by him on the suit land. Hence, successor of defendant Dina Nath has come in second appeal which has been admitted on the following substantial questions of law:- 1. Whether the sub-tenant also falls in the definition of tenant and is entitled to all protection and rights enshrined to a tenant under the H.P.Tenancy and Land Reforms Act? 4 2. What is the effect of non-impleading of the owners as party and whether in the absence of owners a declaration can be sought by a person of his status as a tenant? 3. Whether the suit of the plaintiff is barred by limitation for both reliefs declaration as well as possession in view of fact that the adverse entry came into existence in 1970-71 and the suit was filed in the year 1986? 4. What is the effect of mis-construing and mis-interpretating the documentary evidence i.e. Exts. D-1 to D-3, copies of Jamabandis? 5. Whether Consolidation of Holdings Act is a complete court itself and any person aggrieved by the action of the consolidation authorities can file a suit in the civil court in view of bar laid under Section 57 of the Consolidation Act? 6. What is the effect of mis-reading and mis-construing the oral as well as other documentary evidence? 6. Heard Mr. N.K.Thakur, Advocate appearing on behalf of the appellant and perused the record. None appeared on behalf of the respondent. The learned counsel for the appellant has submitted that the District Judge has erred in decreeing the suit of the respondent. The documentary evidence has been mis-construed and mis-interpreted. The suit is not competent in absence of the previous owners. The District Judge could not have given the declaration that respondent has become owner under H.P.Tenancy and Land Reforms Act. The suit is barred by limitation. The main contention of the learned counsel for the appellant is that the tenant can create sub-tenancy and in the present case, the original tenant created sub- tenancy in favour of the father of appellant which has been established from rapat roznamcha Ex.DW-1/A dated 6.10.1970. The revenue entries in jamabandi after 1970 had been continuously 5 showing Dina Nath as sub-tenant on the suit land and presumption of truth is attached to these jamabandis. 7. There is no denial of fact that in a given situation a tenant can induct sub-tenant on the land if there is no statutory bar. In the present case, the question is whether Dina Nath at any point of time was inducted as sub-tenant on the suit land. The substantial question of law is not of much significance until and unless it is proved that factually Dina Nath was inducted as a sub - tenant on the suit land. The substantial question of law No.1 is accordingly decided. 8. The respondent has filed the suit against Dina Nath, predecessor of appellant on the ground that Dina Nath had threatened to interfere on the suit land which created clouds over the right of the respondent on the suit land. In the written statement, Dina Nath had pleaded that father of respondent was tenant-at-will on the suit land. It is thus clear that Dina Nath predecessor-in-interest of appellant had admitted the tenancy of father of respondent on the suit land. It was not the case of Dina Nath or appellant that the tenancy of father of the respondent or of respondent was extinguished. Therefore, as far as the respondent is concerned, he became owner of the suit land immediately on coming into force of the H.P.Tenancy and land Reforms Act. It is however, to be seen whether Dina Nath had also acquired proprietorship of the suit land under the H.P.Tenancy and Land Reforms Act as sub-tenant of respondent. In these circumstances, it cannot be said that the suit was not competent for not impleading previous owners of the suit land. The substantial question of law No.2 is decided against the appellant. 6 9. The revenue entries were changed after 1970-71 and the suit was filed on 26.11.1986. The respondent has pleaded cause of action a month back prior to the preparation of the plaint. It has not been proved as a fact that respondent was aware of the rapat roznamcha Ex.DW-1/A right from the very beginning. In any case Ex.DW-1/A only refers to some change in khasra numbers noted in Ex.DW-1/A and nothing more than that. In these circumstances, it cannot be said that the suit is barred by limitation. The substantial question of law No.3 is decided against the appellant. 10. The learned counsel for the appellant has submitted that District Judge has mis-construed and mis-interpreted jamabandis Ex.D-1 to D-3. In jamabandi Ex.D-1 in the column of possession the name of Raghubir as co-owner has been shown, Tulsi Ram father of the respondent has been shown tenant and Dina Nath as sub-tenant. Same is the position in Ex.D-2 jamabandi 1975-76 and Ex.D-3 jamabandi 1980-81. The question is whether the change in jamabandi Ex.D-1 1970-71 showing Dina Nath as sub-tenant has been made on the basis of some order of the competent authority or it has otherwise been legally explained. It is the case of the appellant that change in the revenue entry was made on the basis of rapat roznamcha Ex.DW-1/A dated 6.10.1970. At this stage, it is relevant to refer to the pleaded case of the appellant. In the written statement the appellant has pleaded that Dina Nath was inducted as sub-tenant by the father of the respondent with the consent of landlords prior to 1965-66 on payment of rent not exceeding the land revenue. It is thus clear that the appellant is very specific that sub tenancy was created prior to the year 1965-66. There is nothing on record to show 7 nor any explanation has been given if the tenancy was created prior to 1965-66 then why that tenancy was not reported to Patwari Halqua at that point of time and under what circumstances the change was noticed by Patwari vide rapat roznamcha Ex.DW-1/A dated 6.10.1970. Dina Nath has appeared as DW-3 and in his cross- examination, he has stated that the owners had given this land to him in October, 1970. This stand of Dina Nath is totally in contradiction to his stand which he had pleaded in the written statement where he has pleaded that tenancy was created before 1965-66. There is variance in between the pleadings and proof so far as creation of sub- tenancy in favour of Dina Nath father of the appellant is concerned. 11. The learned counsel for the appellant has submitted that after 1970-71 in jamabandis name of the father of the appellant has been recorded as sub-tenant and presumption of truth is attached to such jamabandis. There is no force in this argument. No doubt, presumption of truth is attached to jamabandi but that presumption is rebutable. The change in jamabandis after 1970-71 has not been explained. The change made in jamabandis after 1970-71 is in conflict with pleaded case of Dina Nath. There is nothing on record that entry in the name of Dina Nath in jamabandi 1970-71 onwards was made on the basis of some order of competent officer. In absence of such order or legally acceptable explanation about the change no presumption of truth is attached to jamabandi showing name of father of appellant after 1970-71 onwards. The appellant has failed to show that jamabandis Ex.D-1 to Ex.D-3 and other material on record has been mis-construed and mis-interpreted by the lower 8 Appellate Court. The substantial question of law No. 4 is decided against the appellant. 12. The suit was filed by the respondent on the basis of his own right. It has nothing to do with the Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971. According to respondent, Dina Nath father of the appellant threatened to interfere on the suit land and in order to protect his possession on the suit land the respondent filed the suit. The Section 57 of H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 simply provides that no person shall institute any suit or other proceedings in any civil court with respect to any matter arising out of the consolidation proceedings or with respect to any other matter in regard to which a suit or application can be filed under the provisions of said Act. The frame of the suit is not in conflict with the H.P. Holdings (Consolidation and Prevention of Fragmentation) Act, 1971. The learned counsel for the appellant has failed to point out that the suit filed by the respondent is in any way in contradiction to Section 57 of the aforesaid Act. The substantial question of law No.5 is decided against the appellant. 13. The substantial question of law No.6 is general in nature. It is not the case of the appellant that inadmissible evidence has been relied and some important evidence having bearing on the case or which goes to the root of the case has been ignored. At the time of hearing no such specific instance has been pointed out. The substantial question of law No.6 is decided against the appellant. 14. The learned counsel for the appellant has relied Sohan Lal Vs. Tej Ram, 1963 P.L.J. 113, Bagal Tanti and others vs. Ram 9 Ranjan Laha and others AIR 1976 Calcutta 13, Smt. Sharifan alias Shanti Vs. Ibrahim alias Dharam Vir 1975 P.L.J. 293 and M/s Roy and Co. and another Vs. Sm. Nani Bala Dey and others AIR 1979 Calcutta 50. In the facts and circumstances of the case, the aforesaid judgments cited by the learned counsel for the appellant are not applicable. 15. No other point was urged. 16. As a result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh), July 16, 2009. Judge. (GR)