IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.7/1999 Reserved on: 23.4.2009 Decided on:6.5. 2009 Jagiri Lal. …Appellant. Versus Kartar Chand and others. …Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the appellant : Mr. N.K. Thakur, Advocate. For the Respondents : Mr. Baldev Singh, Advocate. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 3.11.1998 passed by the learned District Judge, Una in civil appeal No. 66/1993. Brief facts necessary for the adjudication of this Regular Second Appeal are that the respondents-plaintiffs (hereinafter referred to as ‘the plaintiffs’ for convenience sake) filed a suit in the Court of learned Senior Sub Judge, Una for declaration to the effect that they were in possession as tenants-at-will on payment of rent under the appellants-defendants (hereinafter referred to as ‘the defendants’ for convenience sake) and 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 have become owners of the suit land as detailed in the plaint. They had also prayed for the issuance of permanent injunction by way of consequential relief restraining the defendants from interfering in any manner on their peaceful possession. Defendants No.1 and 2 Sh Jagiri Lal and Tarsem Lal filed separate written statements and have denied the averments and assertion contained in the plaint. Defendant No.1 has specifically taken the plea that Relu and Jhaunfi and the plaintiffs neither came in possession of the suit land nor have they been inducted as tenants-at-will on the suit land. Defendant No.1 is a purchaser on the basis of the sale deed executed and registered on 26.6.1979 for a sum of Rs. 4,000/-. Defendant No.2 had stated that neither the plaintiff nor their predecessors-in-interest were ever inducted as tenants or came in possession of the suit land. The trial court decreed the suit on 16.3.1993. The defendants preferred an appeal before the learned District Judge, Una. He dismissed the same on 3.11.1998. The present Regular Second Appeal has been filed by defendant No.1 Sh. Jagiri Lal. Defendant No.2 has been added as proforma defendant. This Regular Second Appeal was admitted on the following substantial questions of law. 1. “Whether the findings of both the Courts are legal and valid holding that the conferment of proprietary rights of the suit land is automatic on and with effect from 3.10.1975 without following the procedures laid down under the Himachal Pradesh Tenancy and Land Reforms Act, 1972 and Rules framed thereunder? 2. Whether the suit of the plaintiffs-respondents herein was time barred under the provisions of section 57 of the Consolidation of Holdings Act? If so, what is the effect of the judgments and decree of the courts below on the findings recorded by them? Mr. N.K. Thakur, Advocate has strenuously argued that the learned courts below have misconstrued the oral as well as documentary evidence 3 while coming to the conclusion that the proprietary rights were conferred upon the plaintiffs. He then contended that the civil court had no jurisdiction to try the suit in view of the express provisions of section 57 of the Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971. He has further argued that the suit was barred by limitation. Mr. Baldev Singh, Advocate has supported the judgments and decrees passed by both the courts below. He has contended that the bare perusal of revenue record reveals that the plaintiffs’ predecessors-in- interest were recorded as tenants-at-will and they have been conferred with proprietary rights on the basis of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. He has further contended that the plea of limitation is a mixed question of law and fact and it was required to be pleaded specifically by the defendants. He lastly contended that the civil court had the jurisdiction to try the suit on the basis of the averments contained in the plaint. I have heard the learned counsel for the parties and perused the record carefully. Since both the questions of law are inter-linked and inter connected, therefore, the same are being taken up together for determination to avoid repetition of discussion of the evidence. A bare perusal of jamabandis for the year 1955-56, 1960-61 and 1975-76 Ex.P-2, P-3 and P-4 respectively reveals that the predecessors- in-interest of the plaintiffs, namely, Relu and Jhaunfi had been recorded Gair-Morusi on the suit land. The defendants have not led any tangible evidence to prove that the plaintiffs at some given time relinquished or surrendered their tenancy. The defendants have also failed to prove how the entry in the jamabandis Ex.P-1 and P-5 for the year 1985 4 -86 and 1980-81 were recorded. The defendants have not placed on record any order on the basis of which the entries were altered in their favour. The presumption of truth is attached to the revenue record and the same has not been rebutted by the defendants. It is settled law that the change of possession recorded by the revenue authority without notice to the effected party is not binding. The change of entries is to be effected as per law. The predecessors-in-interest of the plaintiffs have been conferred with proprietary rights after the enactment of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 and the sale deed i.e. Ex.D-1 dated 26.6.1979 has been made only to over reach the express provisions of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. This sale deed is not valid and could not affect the rights of the plaintiffs. The defendants have also not explained how the entry was recorded in Ex.P-6 i.e. Khasra Girdawari. There is no presumption of truth attached to Khasra Girdawari. PW-1 has categorically deposed that Relu and Jhaunfi were their predecessors-in-interest, who were cultivating the suit land as tenants. Neither Relu nor Jhaunfi had relinquished or abandoned their tenancy nor they had been ejected from the suit land. He then deposed that their predecessors-in-interest had become owners of the suit land. PW-2 has supported the version of PW-1. DW-1 has admitted that Relu and Jhaunfi were never ejected as Gair-Morusi from the suit land. DW-2 and DW-3 are the witnesses of sale deed Ex.D-1. DW-3 has also admitted that Chintu etc. who were the owners at the relevant time had never ejected the plaintiffs from the suit land nor their predecessors-in-interest have ever relinquished or surrendered their tenancy. The entries made vide Ex.P-1 and P-5 are stray entries. The same have rightly been discarded by both the courts below. The predecessors-in-interest of the plaintiffs have become owners on the basis 5 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. The defendants could not prove that the plaintiffs were not the tenant-at-will. In these circumstances the civil court had the jurisdiction to decide the controversy. Section 57 of the Himachal Pradesh Holdings (Consolidation and Prevention of Fragmentation) Act, 1971 was not attracted in the present case when the plaint as a whole and reliefs sought for are taken into consideration. The argument advanced Mr. N. K. Thakur, Advocate that the suit was barred by limitation also deserves rejection. The trial court had not framed any issue on the question of limitation. It is not a pure question of law as argued by Mr. N.K. Thakur in this case. Their Lordships of the Hon’ble Supreme Court in Banarsi Das Versus Kanshi Ram, 1963 SC 1165 have held that new plea of limitation which is not purely on a question of law but a mixed question of law and fact should not be allowed to be raised in the Second Appeal. Their Lordships have held as under: “15. The High Court has overlooked the fact that even upon the argument addressed before it on behalf of Kanshi Ram, the question of limitation was not one purely of law but was a mixed question of fact and law and, therefore, it was not proper for it to be raised for the first time in argument. We are satisfied that what the High Court has done has caused prejudice to some of the parties to the suit and on that ground alone, we would be justified in setting aside its decision. If the High Court felt overwhelmed by the provisions of S. 3 of the Limitation Act, it should at least have given an opportunity to the parties which supported the decree of the trial court to meet the plea of limitation by amending their pleadings. After allowing the pleadings to be amended, the High Court should have framed an issue and remitted it for a finding to the trial Court. Instead of doing so, it has chosen to treat the pleading of one of the defendants as conclusive not only on the question 6 of fact but also on the question of law and dismissed the suit. It is quite possible that had an opportunity been given to the defendants they could have established, in addition to proving the dates on which the summonses were served, that the suit was not barred by time because of acknowledgments. In the course of the discussion, the High Court has said that it was not suggested before it by anyone that the claim was not barred by reason of acknowledgments. Apparently, no such argument was advanced before it on behalf of the plaintiff and the defendant Banarsi Das because the counsel were apparently taken by surprise and had no opportunity to obtain instructions on this aspect of the case. We are clearly of opinion that the High Court was in error in allowing the plea of limitation to be raised before it particularly by defendants who had not even filed a written statement in the case. We do not think that this was a fit case for permitting an entirely new point to be raised by a non-contesting party to the suit.” In the present case the plea of limitation has been raised for the first time by the defendants in the Regular Second Appeal. It is a mixed question of law and facts taking into consideration the substance of plaint, written statement and the evidence led by the parties. The Division Bench of Calcutta High Court in Kanailal Dholey and others versus Kalicharan Chatterjee and others, AIR 1977 Calcutta 499 has held that the cause of action to institute a suit does not arise merely because there is an erroneous entry. Their Lordships have held as under: “5. The next point urged by Mr. Basu on behalf of the appellants is that the suit is one under the proviso to S. 111-A of the Bengal Tenancy Act and it is governed by Article 120 of the Limitation Act of 1908. Mr. Basu contended that the record of rights was finally published on the 10th April, 1937. He has produced a copy of the 7 Calcutta Gazette of the year 1937 in which the notification appears at page 945 of Part 1 showing that the record of rights was finally published on 10th April, 1937. His contention is that the suit having been filed on the 8th September, 1954, it is admittedly beyond 6 years, and as such, it is barred by limitation. In support of this contention Mr. Basu relied upon the case of Raja Pramodo Nath Roy versus Asiruddin Mondal, (1911) 15 Cal WN 896. That was a case where the record of rights recorded the status of the plaintiff as that of a tenure holder. The plaintiff claimed that he was an occupancy rayat, and instituted the suit for such a declaration. It was held that the suit was not one under S. 104-H of the Bengal Tenancy Act but it was under the proviso to S. 111-A of the said Act. It was held that such a suit would be within time if brought within 6 years from the date of final publication of the record or rights. In that case the plaintiff was aggrieved by the erroneous entry in the record of right and his cause of action arise with the final publication of the record or rights. That case, therefore, cannot have any application to the present case. The next decision cited by Mr. Basu is the case of Ashutosh Bhuiyan versus Radhikalal Goswami, ILR 56 Cal 407: (AIR 1929 Cal 481). The question which arose for decision in that case was whether the suit out of which that appeal arise was one under Section 111-A or 111-B of the Bengal Tenancy Act. It was held that the suit was one under S. 111-B. That decision has no relevance in the present case. The next decision cited by Mr. Basu in support of his contention is Rai Keshab Chandra Banerjee V. Madan Mohan Poddar, (1936) 40 Cal WN 22. There it was held that where a suit is brought by a person for the declaration of any right of his as contemplated by the proviso to S. 111-A of the Bengal Tenancy Act, the suit is within time under Art. 120 of the Limitation Act, if brought within six years when his cause of action arise that is to say, when any injury to his right is threatened. It was further held that 8 such a suit is not barred because an ancillary to the relief as to the injury he also asks for a declaration that the entry in the record of rights is incorrect and the suit is brought beyond six years from the date when the record was finally published. In our view, this decision instead of supporting Mr. Basu’s contention, goes against him. The learned Judge hearing the second appeal did not also permit the appellants to raise the question of limitation for the first time in the second appeal on the ground that in the present case the question of limitation was a mixed question of fact and law and not a pure question of law. In Banarsi Das V. Kanshi Ram, AIR 1963 SC 1165, it has been pointed out that a new plea of limitation which is not purely on a question of law but on a mixed question of fact and law should not be allowed to be raised for the first time in a second appeal. Moreover, the present suit cannot be said to be one under the proviso to S. 111-A of the Bengal Tenancy Act. The plaintiff was not bound to bring a suit for declaration that the entry in the record of rights was erroneous unless and until there was an invasion of his right. Cause of action to institute a suit did not arise merely because there was an erroneous entry. This view finds support from the decisions in Rai Kiron Chandra Roy Bahadur v. Tarak Nath Gangopadhyay, 40 Cal WN 566: (AIR 1936 Cal 456), Gannan Dunkerley and Co. Ltd. V. Union of India, AIR 1970 SC 1433 and Bolo V. Koklan, 57 Ind App 325: (AIR 1930 PC 270). In our view the learned Judge rightly disallowed the plea of limitation to be raised on behalf of the appellants in the Second Appeal.” In the present case the defendants have failed to prove that due process of law was followed at the time when the entries were changed. The entries could not be changed without hearing the plaintiffs. 9 Accordingly, it is held that the suit filed by the plaintiffs was within limitation. Consequently, in view of the aforesaid reasoning, there is no merit in this Regular Second Appeal and the same is dismissed. There will, however, be no order as to costs. 6.5. 2009 (Rajiv Sharma ), J. *awasthi*