IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A.No. 65 of 1998. Decided on: 4.7.2008. Harnam Singh …Appellant. Versus Chanda Singh ..Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting ? No. For the Appellant : Ms. Vidushi Sharma, Advocate. For the respondent : Mr. S.D.Vasudeva, Advocate. __________________________________________________________ Rajiv Sharma, Judge A challenge has been laid by way of this Regular Second Appeal to the judgment and decree passed by the learned District Judge, Kangra at Dharamshala in Civil Appeal No. 50-N/XIII-1997 dated 23.09.1997. The brief facts necessary for the adjudication of this Regular Second Appeal are that the appellant-plaintiff (hereinafter referred to as the ‘plaintiff’ for convenience sake) had filed a Suit for possession of the land in the Court of learned Sub Judge 1st Class (I), Nurpur, District Kangra, H.P. alleging that he along with other co-sharers is owner of the land and the defendant had illegally occupied the suit land in the month of October. 1984. The respondent-defendant (hereinafter referred to as the ‘defendant’ for convenience sake) ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? 2 contested the suit by filing written statement. The replication was filed by the plaintiff to the written statement filed by the defendant. The learned Sub Judge 1st Class (I), Nurpur, District Kangra, H.P. decreed the suit on 25.4.1997. The defendant preferred an appeal against the judgment and decree dated 25.4.1997 in the Court of Ld. District Judge, Kangra at Dharamshala. The learned District Judge, Kangra at Dharamshala accepted the appeal on 23.9.1997 and the impugned judgment and decree was set-aside and modified to the extent that the plaintiff and defendant along with their four brothers shall inherit the suit land in equal shares in view of Section 104 of the H.P.Tenancy and Land Reforms Act. Hence this Regular Second Appeal has been filed by the plaintiff. This Regular Second Appeal was admitted by the Court on 5.6.1998 on the following substantial question of law: Whether the first appellate Court has correctly read and appreciated the evidence on record, more specifically, the revenue records Exts. P-1 to P-3 and D-1 to come to the conclusion that the property in dispute was previously cultivated by Sucheta, the father of the appellant-plaintiff and the respondent- defendant, and after his death the parties and his other sons are entitled to inherit the tenancy rights in equal shares and also proprietary rights under Section 104 of the H.P.Tenancy and Land Reforms Act ? Ms. Vidushi Sharma, Advocate has strenuously argued that the judgment and decree dated 23.9.1997 is not sustainable in the eyes of law. She then contended that the learned District Judge has misconstrued and misread the revenue entries proved on record by the parties. She further contended that the learned District Judge has 3 acceded his jurisdiction by directing the conferment of proprietary rights under Section 104 of the H.P.Tenancy and Land Reforms Act upon the defendant and other four brothers. Mr. S.D.Vasudeva, Advocate has supported the judgment and decree dated 23.9.1997. I have heard the learned counsel for the parties and also perused the record carefully. The plaintiff has appeared as PW-1. He has deposed that he was owner of the suit land and it was only during settlement that the defendant with the connivance of settlement staff, got himself recorded as Kabiz and thereafter took the possession of the suit land. He tendered documents Ex.P-1 to Ex. P-3. Ex.P-1 is the copy of Misal Hakiat for the year 1982-89, Ex.P-2 is jamabandi for the year 1979-80 and Ex.P-3 is jamabandi for the year 1977-78. The defendant has appeared as DW-1 and has deposed that the suit land is 11 Kanals & 6 Marlas. He further deposed that he was cultivating the suit land for the last 30 years and before him, his father Sucheta was cultivating the same. He then deposed that entries got recorded by the plaintiff in his favour were erroneous since according to him, the entries were to be made in favour of all the brothers. DW-2, Rai Singh has supported the version of DW-1. It is evident from Ex.D-1 that Khasra No.6 is recorded in possession of Sucheta and others. In the column of rent, the entries are ‘GALLA BATTAI TIHARA’ In Missal Haqiat Ex.D-2 for the year 1977-78, Khasra No.6 is recorded in possession of the plaintiff as ‘GAIR MARRUSSI’. This entry was repeated in Missal Haqiat Ex.D-4. In the jamabandi for the year 1991-92 Ex.D-3, the plaintiff has been shown as ‘GAIR MARRUSSI’ over the suit land and the defendant is recorded as ‘Kabiz’. Ex.P-1 is Missal Haqiat for the year 1982-83 which reveals that proprietary rights in respect of the suit land were conferred in favour of 4 the plaintiff. The mutation No.19 was also sanctioned in his favour. It is thus, evident that the revenue entries are in favour of the plaintiff. The defendant has not taken any steps for getting these revenue entries corrected which established that the proprietary rights had been conferred upon the plaintiff. There is presumption of truth attached to these entries. The defendant, as noticed above, has not taken any steps to assail the same before competent authority. The learned Appellate Court has erred in law by holding that the presumption of truth could not be attached to these entries since the same were not carried forward following the instructions recorded in H.P.Land Records Manual. The valuable right has accrued in favour of the plaintiff when he was conferred the proprietary rights as per the provisions of H.P.Tenancy and Land Reforms Act. The conferment of the proprietary rights on the tenants is as per the provision of Section 104 of the H.P.Tenancy and Land Reforms Act, 1972. The Civil Court has no jurisdiction to confer proprietary rights as has been done by the learned Appellate Court below while setting-aside the judgment and decree of the trial Court. The proprietary rights are conferred by the Land Reforms Officer and if any person is aggrieved by the orders passed by the Land Reforms Officer, there is a detailed procedure for filing an appeal before the appellate authority. The learned District Judge could not direct the conferment of proprietary rights upon the defendant and four brothers since the proprietary rights had already been conferred upon the plaintiff as is evident from the copy of Missal Haqiat Ex.P-1 for the year 1982-83. The plaintiff has also been shown as ‘GAIR MARRUSSI’ as per copy of jamabandi for the year 1991-92 and the mutation was also attested in his favour. The plaintiff has filed suit for possession of the land. The suit was decreed by the learned trial Court on the basis of revenue entries as noticed above. The learned District Judge while accepting the appeal of 5 the defendant has modified the decree by ordering conferment of proprietary rights on the defendant and four brothers which was not permissible under the law. In view of the observations made hereinabove, the Regular Second Appeal is allowed and the judgment and decree dated 23.9.1997 passed by the learned District Judge, Kangra at Dharamshala is set-aside and the judgment and decree dated 25.4.1997 passed by the Sub Judge 1st Class (I) Nurpur, District Kangra, H.P. is restored. The parties shall bear their own costs. ( Rajiv Sharma ), Judge. July 4, 2008. (GR)